Inability to perform job justified dismissal

Cases

Inability to perform job justified dismissal

An employee's dismissal was not unfair because medical evidence indicated she could not perform the inherent requirements of her job now or in the foreseeable future.

WantToReadMore

Get unlimited access to all of our content.

An employee's dismissal was not unfair because medical evidence indicated she could not perform the inherent requirements of her job now or in the foreseeable future.

The employee worked in an immigration detention centre. She suffered a back injury in a fall at work in April 2015 and eventually had to cease work in late June 2015. The employer directed her to attend a medical fitness for work assessment, which did not occur until March 2016. 

What medical assessment said


The assessment concluded that:
  • She could not return to work in the near future
  • She could not perform the inherent requirements of her job
  • There was no other form of assistance the employer could reasonably provide, eg modifications to job or workplace
The employer concluded there was no prospect of her returning to work in the foreseeable future and asked her to show cause why she should not be dismissed.

The employee then produced a certificate from her own doctor claiming she would be fit to resume work in May 2016, but the employer chose to rely on its own evidence and dismissed her.

The employee also claimed she was dismissed because she had raised grievances while working at one detention centre.

The Fair Work Commission found she was dismissed because the employer’s evidence indicated she could not perform the inherent requirements of her job. The commission noted the medical assessment ordered by the employer was the only one in which comprehensive information about job requirements was supplied to the assessor.

The commission added that, while other options may have been available to the employer – eg to allow the employee to undergo another medical assessment at her own cost and compare the two results – the medical evidence it had already obtained was sufficient to provide a valid reason for dismissal.

Seeking a second opinion would be problematic if the findings were different, resulting in the need for a third assessment. Apart from the cost, this would then require the employer to make a decision based on conflicting evidence.

What this means for employers


Cases involving fitness for work over a long period of time are often problematic.

Medical evidence needs to be conclusive in order to justify dismissal based on incapacity. If it is not, more than one assessment may be required before making a decision.

Medical assessments should focus on an employee’s ability to perform the inherent requirements of the job, and a time frame for when this is likely to become possible (if at all). For the latter reasons, it is essential to communicate those inherent requirements to any medical practitioner assessing the employee.

In this case, the employer had sent extensive job-related information to the assessor. As such cases tend to “drag on” for lengthy periods, it is also essential to provide an employee with procedural fairness.

Nelitha Vather v Serco Australia Pty Ltd t/a Serco [2016] FWC 5983, 25/8/16
 
Post details