This extract from an unfair dismissal decision of the Fair Work Commission deals with the legal issues of the inherent requirements of a job and capacity to do a job, in circumstances in which an employee had lost his motor vehicle driver’s licence.
“Consideration
[66] Mr Lambert is eligible to make the claim. He was a person protected from unfair dismissal (s 382) and was dismissed (s 386). The application was made within time (s 394(2)).
[67] Northpoint is not a small business for the purposes of the FW Act. The Small Business Fair Dismissal Code does not apply to this matter.
[68] I now turn to whether the dismissal was harsh, unjust or unreasonable.
[69] Section 387 provides:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person–whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.”
[70] I now consider these matters.
Valid reason s 387(a)
[71] A valid reason for dismissal is one that is sound, rational or defensible.8
[72] The reason advanced by Northpoint is that Mr Lambert was unable to perform the inherent requirements of the job, had not been able to do so in the four months prior to dismissal, and that his job could not be indefinitely kept open.
[73] An inability to perform the inherent requirements of a position will generally provide a valid reason for dismissal, though not invariably so.9
[74] A reason will be “related to capacity” where the reason is associated or connected with the ability of the employee to perform his or her job.10 It is the substantive position or role of the employee that must be considered and not some modified role, restricted duties or temporary alternative position.11 The reference to “inherent” requirements invites attention to the characteristic or essential requirements of the employment as opposed to those requirements that might be described as peripheral.12
[75] In Jetstar Airways Pty Ltd v Neeteson-Lemkes13 a Full Bench held that “[c]onsideration of the validity of that reason [related to capacity] requires three interconnected elements to be considered: firstly, whether [the employee] was capable of performing the inherent requirements of [the] role as at the date of dismissal; secondly, whether [the employee] would be able to perform the inherent requirements of [the] role at some time in the future; and thirdly, whether there was some reasonable adjustment which could be made to [the] role to accommodate any current or future incapacity.”
[76] In Shortland v Smiths Snackfood Co14 a Full Bench observed that “[w]hen an employee is absent because of an incapacity to perform duties, a question of timing arises. The FW Act precludes a termination for a temporary absence of up to 3 months. If an absence extends beyond that period, it becomes a question of whether there is likely to be a return to duties in the short or medium term. Usually updated medical advice will be important to that consideration. Indeed, that medical information could have a bearing on the adequacy of the reason for termination.”
[77] I apply these principles in determining this matter. I deal specifically with the question of timing (whether the dismissal was unfair on the ground that it was premature) in considering the applicant’s submission (below) concerning harshness.
[78] It is readily apparent from the evidence, and not disputed, that a requirement of Mr Lambert’s position was that he held a current and valid driver’s licence. I accept Ms Walker’s evidence that, for insurance purposes, Northpoint required Mr Lambert to hold a valid driver’s licence even when driving solely on-site.
[79] It is also not disputed that a material and essential part of the role required Mr Lambert to drive motor vehicles both on-site and, from time to time, on public roads.
[80] These were not incidental or peripheral requirements of the job.
[81] Further, it is not in dispute that, at the time of dismissal, Mr Lambert did not hold a valid driver’s licence permitting him to drive. He had not held one for the four months prior. It had been suspended and remained so.
[82] For these reasons I find that holding a valid driver’s licence was an inherent requirement of the job and that Mr Lambert was unable to fulfil that inherent requirement at the time of dismissal.
[83] This was a valid reason for dismissal.
[84] I make this finding without needing to consider whether Mr Lambert was incapable, for medical reasons, to perform the inherent requirements of the job. I agree with Mr Lambert that the employer did not rely on medical incapacity as the basis for its dismissal, though I observe that the Commission is not, when considering valid reason, bound solely to consider the ground relied on by an employer. Conduct or circumstance can constitute a valid reason, even if not relied upon by the employer, provided it existed at the time of dismissal.
[85] I simply observe that given the medical episode, and the reporting of it to the licensing authority, was the reason for the licence suspension, it is more than arguable that at the time of dismissal Mr Lambert was also unable to perform an inherent requirement of the job (that is, safely drive a motor vehicle) for that to also have been a valid reason.
[86] I do not consider that the employer failed to fully inform itself of Mr Lambert’s medical condition. Whilst it did not seek out medical reports, it accepted the oral updates that Mr Lambert provided on 7 June and 20 August. Those updates informed the employer that medical testing was occurring and that no diagnosis or explanation for the medical episode had yet been made. To the extent that there was a failure to rely upon medical reports, it was Mr Lambert who did not provide the employer with the letters from his cardiologist of 3 May and 16 July, or the hospital discharge form of 31 July. I do not however consider this failure material because those reports largely added no more relevant information than what Mr Lambert orally conveyed.
[87] I do not accept Mr Lambert’s submission that there was no valid reason because alternate arrangements could have been put in place to enable him to perform the inherent requirements of the job. Each of the alternate arrangements postulated by Mr Lambert would have required the job to be restructured into something different (such as a part time or casual job) so that only those elements which he could perform needed to be done. Testing valid reason against such an approach is impermissible. Firstly, as noted, valid reason is tested against the regular job as it existed, not some incidental or light duties portion of it or hypothecated subset. Mr Lambert’s regular job was a full time role encompassing all the duties set out in the position description. Secondly, the evidence clearly establishes that the need to drive cars was indivisible from Mr Lambert’s duties of car washing and detailing. Mr Lambert was required to drive cars to and from the washing and detailing bays and not simply be present at those locations waiting for cars to be driven to him by others.
[88] Absent a driver’s licence, I find that no reasonable adjustment could be made to Mr Lambert’s job to accommodate any current or future incapacity.
[89] That a valid reason existed weighs against a finding of unfair dismissal.
Whether notified s 387(b)
[90] Mr Lambert was notified of the reason for dismissal on the day he was dismissed. He was informed that it was because holding a driver’s licence “was a core competency of the role” and that “we are unable to keep your role open”.
[91] This is a neutral consideration.
Opportunity to respond s 387(c)
[92] I have found that:
• a show cause process was put in place, with a show cause meeting deferred by a week at Mr Lambert’s request;
• as part of the show cause meeting, Mr Lambert was told to consider resigning;
• Mr Lambert sought and was granted a short period of time to consider his options;
• the decision to dismiss was a joint decision of Ms Walker and Mr Shephard, made after the show cause meeting and informed by it, including the fact that Mr Lambert had declined to resign; and
• absent a resignation, termination was pre-determined prior to the dismissal meeting on 22 August.
[93] Considered overall, and although the decision to escalate the matter to a show cause process and then dismiss was sudden, I do not find that Mr Lambert was denied procedural fairness. The minimum requirements of procedural fairness were met. Mr Lambert was on notice for the ten days prior that he may be dismissed. Mr Lambert was given an opportunity to state his case on 20 August and his views were then considered. Mr Lambert was given the reason for dismissal in an open and transparent manner two days later.
[94] These considerations weigh against a finding that the dismissal was unfair.
Support person s 387(d)
[95] Mr Lambert was not denied access to a support person because he did not request one. Ms Walker’s email of 12 August 2024 specifically invited Mr Lambert to attend the show cause meeting with a support person.
[96] Given this, s 387(d) is a neutral factor.
Performance s 387(e)
[97] The dismissal was not connected to Mr Lambert’s performance other than the employer’s assessment that he was unable to perform the inherent requirements of the job and had not been able to do so in the four months prior. I have dealt with these issues in considering valid reason.
[98] That aside, no other performance issues arise or are relevant. It is not in contest that, until the April 2024 motor vehicle accident., Mr Lambert was a good and keen employee whose performance had not been brought into question.
[99] Section 387(e) is a neutral consideration.
Size of business and human resource capacity (s 387(f) and (g)
[100] Northpoint is not a small business employer. It has some human resources capacity.
[101] Its size and human resources capacity do not materially explain the decisions and conduct of the employer relating to Mr Lambert’s dismissal.
[102] Sections 387(f) and (g) are neutral considerations.
Other matters s 387(h)
[103] There are no other matters for consideration.
Conclusion on unfairness
[104] Clearly the dismissal arose from a dreadful circumstance which was neither the fault of Mr Lambert nor Northpoint.
[105] However, that circumstance (a medical episode whereby Mr Lambert blacked-out at the wheel whist driving in the course of his employment) presented a personal, medical, industrial and business reality that both parties needed to deal with.
[106] I have found there to be a valid reason for dismissal based on Mr Lambert being unable to perform an inherent requirement of the job.
[107] I have not found the dismissal procedurally unfair.
[108] Other considerations are neutral.
[109] However, Mr Lambert submits that even if a valid reason existed, the dismissal, when considered overall, was harsh.
[110] This submission is based on the proposition that, as the reason for dismissal relied on by the employer was the driver’s licence being suspended, the decision was premature because the employer ought reasonably to have waited a further two months until the licence was restored.
[111] Section 387 requires a global assessment of all relevant factors. I agree with Mr Lambert, and it is well established, that there may be a valid reason for dismissal but dismissal may nevertheless be harsh, unjust or unreasonable.15
[112] There is some force in Mr Lambert’s submission of harshness.
[113] Firstly, Mr Lambert genuinely believed that his licence would be restored six months after the accident, on or about 20 October 2024, because it had only been suspended for six months. Mr Lambert had informed the employer of this expectation. This is what happened.
[114] Secondly, having kept the job open for four months and having put in place workarounds to have his duties performed by others, the employer could have elected to wait another two months.
[115] Thirdly, in the context of the statutory scheme where a three month absence from work on account of illness or injury is deemed “temporary”, keeping a job open for four or six months is not as long a period as might otherwise be the case.
[116] In this respect Mr Lambert submits that regard should be had, as the Full Bench did in
Smith (above), to the provisions of s 352 of the FW Act: “352 Temporary absence–illness or injury
An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.”
[117] Regulation 3.01(5)(i) of the Fair Work Regulations 2009 provides that an illness or injury is not of a prescribed kind if “the employee’s absence extends for more than 3 months”.
[118] I agree that s 352 and regulation 3.01 are contextually relevant to an assessment of fairness, and particularly whether an employer has allowed a reasonable time to elapse before dismissing an employee who is unable to perform the inherent requirements of the job on account of illness or injury. The legislature has provided this relatively extensive period of protection for an employee’s absence before dismissal on account of illness or injury is considered lawful. This being so, it follows that what is a reasonable period when considering fairness should be similarly assessed somewhat liberally, though ultimately fairness remains based on all relevant circumstances. Just as the courts have observed that a dismissal contrary to an employer’s workers compensation obligation would not be considered fair16, it would be difficult to contemplate circumstances whereby a dismissal inside the three month period provided for by s 352 would be fair.
[119] Consequently, if Northpoint had dismissed Mr Lambert inside three months from the commencement of his absence it may well have been acting both unlawfully and unfairly. I need not make a finding on this hypothetical. Whilst it may be arguable that Mr Lambert was not on personal leave and thus may not, strictly speaking, have taken an absence of a “prescribed kind” within the meaning of regulation 3.01(2), I prefer the view that the regulation applied to these circumstances.
[120] That aside, I assess whether Mr Lambert’s dismissal was unfair in that it was premature (or, conversely, whether the time allowed by Northpoint was reasonable in the circumstances) in the statutory context that up to three months is considered by the legislature as a “temporary” absence.
[121] Northpoint acted after four months.
[122] Whilst the applicant submits that dismissal after the period of four months in the context of a prospective restoration of Mr Lambert’s driver’s licence at the six month mark was unreasonable, there are material countervailing considerations. These are:
• at the time of termination Mr Lambert had been unable to perform an essential requirement of the job (hold a valid driver’s licence and drive motor vehicles) for four months;
• at the time of termination it was not known whether Mr Lambert’s driver’s licence would be restored in two months’ time. Although prior to termination Mr Lambert had informed the employer that he expected to have his licence restored on or about 20 October 2024, there was no certainty of this because it was dependent on firstly, medical certification of his fitness to drive from this date and, secondly a decision by the licencing authority to restore the licence. A genuine belief was held by Mr Lambert, but the employer had no insight into what the future medical assessment of his doctors would be or the views of the licensing authority on any such medical assessment (though it is reasonable to expect that a licensing authority would act on any such certification). An assessment of harshness is not made in hindsight but by reference to known and reasonably known facts which existed at the time of dismissal;
• whilst this aspect should not be over-stated (given the nature of the job in the context of overall business operations), the temporary arrangements Northpoint had put in place during the preceding four months had become somewhat unreliable, caused some disruption to business operations and created a level of discontent within part of the workforce; and
• no alternate roles were available or reasonably available to be performed which Mr Lambert could undertake.
[123] Having regard to both the considerations in favour and against a finding of harshness, and whilst taking a relatively liberal view to the time that an employer ought to reasonably allow, I do not find that Mr Lambert’s dismissal was harsh on the ground that the employer dismissed him prematurely.
[124] Whilst it was open for Northpoint to have taken a different view and waited longer before dismissal (and some employers may well have done so), it was not unfair that Northpoint did not do so. It is well established that the Commission does not stand in the shoes of an employer and decide what they could or should have done.17 The issue is whether what the employer actually did was, considered overall and objectively, harsh, unjust or unreasonable. I conclude that it was not.
[125] For the sake of completeness, I have not weighed against Mr Lambert his evidence that that he was unable to perform his job in the two months that followed dismissal when he was placed on a disability support payment or that, in his opinion, he was unable to work after being dismissed (including being unable to seek work) because he was dismissed. As neither the dismissal nor my conclusion are based on an alleged medical incapacity beyond the medical episode that suspended the driver’s licence, I do not do so.
[126] Further, although it is somewhat unorthodox to say the least that Mr Lambert may have been in receipt of unemployment benefits prior to being dismissed, this has formed no part of
my decision. Those are issues between he and Centrelink. That he was for four months without income and sought income support is understandable. I repeat the observations I made in Alexandrou v Randstad Pty Ltd18 that the fairness of government agencies requiring, to be eligible for unemployment benefits, that employment has ceased (rather than, for example simply that paid work has ceased) is a matter for policy makers, not the Commission.
Conclusion
[127] As Mr Lambert was dismissed through no fault of his own and consequent on an unexplained medical episode which deprived him of his driver’s licence, one can readily have empathy for his circumstances.
[128] However, as his dismissal was not unfair, no issue of remedy arises. The application must be dismissed.
[129] An order giving effect to this decision is issued in conjunction with its publication.19”
– Lambert v Ducala Pty Ltd trading as Northpoint Toyota [2025] FWC 27 delivered 6 January 2025 per Anderson DP