Capacity to do the job and unfair dismissal

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?

[141] 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

[142] 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

job.”107

[143] 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

[144] 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

[145] 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.

[146] 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

[147] The medical evidence, even if obtained after dismissal, must be directed to the

Applicant’s state of health at the time of dismissal.111

[148] 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.

[2023] FWC 2483

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[149] 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.

[150] 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.

[151] 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.

[152] 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.

[153] 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.’

[154] 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.

[155] In the June 2022 Home Report, Dr Home stated that the reason for the permanent

restrictions is the Applicant’s known spinal pathology.

[156] 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.

[157] 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.

[2023] FWC 2483

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[158] 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.

[159] 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

 

[160] 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.

[161] 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.

[162] 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 [2023] FWC 2483 delivered 26 September 2023 per P Ryan C