An employer who had a valid reason for dismissal because the employee was unable to physically perform the inherent requirements of her role due to medical incapacity has nevertheless been ordered to pay the former employee compensation for unfair dismissal. The employer had dismissed the employee by relying upon Regulation 3.01(5) of the Fair Work Regulations which provides as follows
(5) An illness or injury is not a prescribed kind of illness or injury if:
(a) either:
(i) the employee’s absence extends for more than 3 months; or
(ii) the total absences of the employee, within a 12 month period, have been more than 3 months (whether based on a single illness or injury or separate illnesses or injuries); and
(b) the employee is not on paid personal/carer’s leave (however described) for a purpose mentioned in paragraph 97(a) of the Act for the duration of the absence.
The employee had been absent from work for more than 3 months and thus it was lawful to dismiss her but that does not mean that an employer can ignore the requirements to act fairly, and , in this case, the provisions of the Small Business Fair Dismissal Code. Commissioner Cambridge concluded that the Code did not afford the employer a defence because “In this instance the applicant was not given a reason why she was at risk of being dismissed nor was she warned that she was at risk of being dismissed because of her extended absence from work due to illness. Therefore the dismissal of the applicant was not consistent with the Code and further consideration must logically be made in respect of subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust or unreasonable…….Consequently, the circumstances have established that the applicant is incapable of performing the inherent requirements of the job and such incapacity, once properly established, would ordinarily provide valid reason for the termination of employment. Unfortunately however, in this instance, the employer erroneously construed that a Regulation (Regulation 3.01 (5)) relating to a General Protection established by s. 352 of the Act, created valid reason for dismissal once the applicant’s absence from work had extended beyond a three month period. [35] It is indeed unfortunate that the employer misconstrued the operation of the Regulation made in respect of the General Protection provided by s.352 of the Act. In the absence of that mistake the employer may have properly established valid reason for the dismissal of the applicant because of her incapacity to return to work with the employer. However, the employer’s hasty and erroneous reliance upon the three month time prescription in Regulation 3.01 (5) has meant that there was not a valid reason for the dismissal related to capacity or conduct of the applicant. “
In the end the facts of the written notice of termination being provided was after the effective date of dismissal and the failure to afford the employee an opportunity to respond were fatal to the employer’s position.
“The employer did not provide any opportunity for the applicant to respond to the prospect that her extended absence from work might result in dismissal. Importantly, the applicant was denied an opportunity to advance any prospects, short or long term, which might provide basis to return to work. In particular, the suggestion of independent mediation was not properly pursued and such mediation may have resulted in an amicable arrangement for the finalisation of the applicant’s employment on the basis of her incapacity and including agreed terms.”
Doris Maree Pettitt v MicroAnalytix Pty Ltd [2015] FWC 6595 (25 September 2015)
For a remarkably similar case see also Lawless v Qantas Airways Limited [2015] FWC 6456 delivered24 September 2015