FWC endorses inherent requirements dismissal

The Fair Work Commission has found the dismissal of an injured storeperson to be fair and reasonable after the employer concluded the employee was unable to perform the inherent requirements of the role.

The employee had been absent from work for a period of approximately 15 months due to non-work-related injuries sustained in a car accident. During this time the employer kept her position open and participated in a number of return-to-work and capacity assessments. The employer considered modifying the employee’s duties however Commissioner Cirkovic found that “…no adjustment could be made…to accommodate her mental incapacity”.

The medical evidence indicated that, while the employee’s physical capacity was improving, her mental state had declined, and she was declared unfit to return to work. In response, the employer wrote to the employee putting her on notice that it was considering terminating her employment as she was unable to perform the inherent requirements of her role.  The employee was invited to attend a meeting and to provide any further medical information regarding her prognosis and ability to return to her role. The employee participated in a teleconference with the employer and agreed with the medical assessment that she could not perform any of the duties of her role. The employer provided the employee with a letter terminating her employment on the basis of an inability to perform the inherent requirements of her role.

The dismissal was found not to be harsh, unjust or unreasonable, with the Commissioner concluding as follows:

  • at the time of termination, the Applicant could not perform the inherent requirements of her substantive role;
  • the Respondent kept the Applicant’s role open for a lengthy period of over 12 months; and
  • the state of the medical evidence at the time of termination was such that the Respondent had a valid reason for termination.

This case sets an example for employers of a procedurally fair process resulting in termination of employment where the employee was unable to fulfil the inherent requirements of her role.


Lessons for employers

  • If you have a long term absent employee- ensure you have recent medical evidence including prognosis and ability to perform the substantive role
  • If medical evidence is inconclusive, consider obtaining independent medical examination in order to assess ability to perform the role
  • Employer should allow a reasonable period of time and assist the employee to return to work if possible
  • If considering termination, ensure you follow a fair process and provide the employee with the opportunity to have input into the process
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