What follows is a portion of a decision of the Fair Work Commission in an unfair dismissal case which about the legal issues of capacity to do the job and unfair dismissal laws.
“Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
 In order to be a valid reason, the reason for the dismissal should be “sound, defensible
or well founded”104 and should not be “capricious, fanciful, spiteful or prejudiced.”105 However,
the Commission will not stand in the shoes of the employer and determine what the Commission
would do if it was in the position of the employer.106
 The Respondent submits that there was a valid reason for the dismissal of the Applicant
related to the Applicant’s capacity. “A reason will be ‘related to the capacity’ of the Applicant
where the reason is associated or connected with the ability of the employee to do his or her
 Where an employer asserts that there was a valid reason for the dismissal of the
Applicant related to the Applicant’s capacity to perform the inherent requirements of
his/her/their substantive role, “it is the substantive position or role of the employee that must
be considered and not some modified, restricted duties or temporary alternative position that
must be considered”.108
 I have set out earlier my findings in relation to the inherent ‘physical’ requirements of
the role of a Deputy at the Appin Mine.109
 The key issue in dispute is the conflict between the evidence of Dr Home and Dr Mobbs
as to the condition and stability of the Applicant’s spine following the spinal decompression
procedure in November 2021.
 Where there is conflicting medical evidence, the Commission must resolve the conflict.
This requires the Commission to consider and make findings as to whether, at the time of
dismissal, the Applicant suffered from the alleged incapacity having regard to the relevant
medical and other evidence before the Commission.110
 The medical evidence, even if obtained after dismissal, must be directed to the
Applicant’s state of health at the time of dismissal.111
 I accept the evidence of both Dr Home and Dr Mobbs that the question of whether a
person has functional capacity falls within the expertise of Dr Home. However, any assessment
of functional capacity must be based on an accurate assessment of the condition of the persons
health – in this matter, the condition and stability of the Applicant’s spine.
 FWC 2483
 Having given careful consideration to the evidence before me, I prefer the evidence of
Dr Mobbs over Dr Home in relation to the condition and stability of the Applicant’s spine for
the following reasons.
 First, in relation to the pre-operative imaging, Dr Mobbs was clear in his evidence that
he had reviewed the pre-operative CT and MRI scans and that a flexion extension x-ray had
been taken and that the reporting of the pre-operative imaging, whether that of A/Prof Paolini
or the radiologist, was ‘grossly overstated’. Dr Mobbs evidence was clear that the condition of
the Applicant’s spine had minimal degenerative changes and was in keeping with an
asymptomatic person of a similar age. In relation to the flexion extension x-ray, Dr Mobbs
stated that it demonstrated overall stable mechanics of the Applicant’s lumbar spine in various
positions of function.
 Conversely, Dr Home accepted that he had not viewed the CT scans and his evidence
was to some extent uncertain as to whether he had directly reviewed the pre-operative MRI
scans, or whether any review was based on a photograph of the MRI scans on the Applicant’s
mobile telephone. Irrespective of this, Dr Home accepted that while he is experienced in
reviewing spinal imaging, he did not have the same level of experience as Dr Mobbs.
 While the Respondent submitted that Dr Home was entitled to reply on the imaging
findings as set out in the January 2022 Paolini Report and the 28 March Paolini Report, it is clear
that, at the very least, Dr Home had reviewed the imaging via the Applicant’s photograph and
formed his own view.
 Second, Dr Home placed significant emphasis on the pre-operative imaging as the basis
for the permanent medical restrictions. In the February 2022 Home Report, Dr Home
recommended permanent restrictions in relation to the Applicant’s ‘spinal condition’ and that
particular duties were unsuitable ‘taking into account [the Applicant’s] spinal condition, due to
the risk of material aggravation of the identified multilevel spinal degenerative changes.’
 In the April 2022 Home Report, Dr Home stated that in relation to this spinal condition,
the medical restrictions are placed to prevent the substantive risk that heavy manual work will
aggravate the Applicant’s substantial known pathologies.
 In the June 2022 Home Report, Dr Home stated that the reason for the permanent
restrictions is the Applicant’s known spinal pathology.
 Third, Dr Mobbs is the neurosurgeon who performed the spinal decompression
procedure and is uniquely placed to comment on the condition of the Applicant’s spine having
performed the procedure. Dr Mobbs stated that following the spinal decompression procedure
the condition of the Applicant’s spine was excellent and in keeping with an asymptomatic
person of a similar age, and that any increased risk of further spinal injury was minimal
compared to that of an asymptomatic person of the same age and sex.
 Fourth, Dr Mobbs was clear in his evidence that the spinal decompression procedure
had minimal impact on the stability of the Applicant’s spine. Conversely, Dr Home while
reported to the Respondent that the spinal decompression procedure added vulnerability and
heightened risk of reinjury, he ultimately accepted that the procedure had minimal impact on
the Applicant’s spinal stability.
 FWC 2483
 Fifth, while I accept the Respondent’s submission that the evidence of Dr Mobbs was
relevant to November 2021, that submission equally applies to the evidence of Dr Home as to
his review of, and the emphasis he places on, the pre-operative imaging. Furthermore, it is
unclear whether Dr Home reviewed the pre-operative imaging at any time other than as part of
the February IME.
 The Respondent’s view that the Applicant could not perform the inherent requirements
of his role of a Deputy at the Appin Mine was based upon his medical conditions and in
particular, the condition of his spine.112
 Having regard to my preference for the evidence of Dr Mobbs, I am not satisfied that
the Applicant suffered from the alleged spinal incapacity at the time of dismissal.
 As a consequence, the Respondent’s dismissal of the Applicant for the reason that he
was unable to perform the inherent requirements of the role of a Deputy is a not a valid reason.
 The absence of a valid reason weighs in favour of a conclusion that the Applicant’s
dismissal by the Respondent was unfair.”……………..
Latham v Illawarra Coal Holdings Pty Ltd  FWC 2483 delivered 26 September 2023 per P Ryan C