Inherent requirements of the job and valid reason for dismissal

This passage from an unfair dismissal decision deals with the issue whether being unable to meet the inherent requirements of a job is a valid reason for dismissal.

“(a) whether there was a valid reason for the dismissal.

[17] The Respondent states the primary reason for dismissal was that the Applicant had

requested that her employment be terminated by the Respondent after her call with Mr Bensley

on 5 December 2022. The Applicant contends that she asked to be terminated from her

employment. In the alternative, the Respondent argues that they had no alternative but to

terminate the Applicant’s employment on or after 5 December 2022 on the basis that she was

unable to perform the inherent requirements of the role.

[18] It is well established that the factual basis for the reason for dismissal will not of itself

demonstrate the existence of a valid reason.5

It must, as s.387(a) makes clear, be a valid reason

for dismissal. To be a valid reason, the reason for the dismissal should be “sound, defensible or

well founded”6

and should not be “capricious, fanciful, spiteful or prejudiced.”7

As summarised

by Deputy President Asbury in Smith v Bank of Queensland Ltd a “dismissal must be a

justifiable response to the relevant conduct or issue of capacity”.

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[19] Capacity takes into account whether the Applicant has the capacity to perform their

duties at the time of dismissal, at some time in the foreseeable future, and whether there was

some reasonable adjustment which could have been made in order to accommodate any current

or future capacity of the Applicant to perform their role.

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The future capacity to perform duties

may be assessed by reference to their state of health expressed by expert opinions at the time

[2023] FWC 1333

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of dismissal.10 An inability to perform the inherent requirements of a position can be a valid

reason for dismissal.11

[20] The Applicant did not have capacity to perform the duties of her role at the time of

dismissal and in the foreseeable future. The Applicant had provided medical certificates

indicating that she was not fit for work and did not know when she could return back to work.

There are questions regarding whether reasonable adjustments could have been made

considering that some of Mrs Fisher’s duties were done remotely by Ms Zhou in Melbourne,

and some duties of the role are done remotely in the Melbourne office. However, Mrs Fisher

did not provide a clear return to work date which would provide the Respondent an opportunity

to consider the request.

[21] I find that the Respondent did wait for Mrs Fisher to return back to work and had

temporarily restructured the role until her health improved. However, the length of absence by

Mrs Fisher had given the Respondent a valid reason for dismissal on the basis that she was

incapable of performing her existing role, as a part of her role requires her to work in the office.

[22] In regard to the contention by the Respondent that the Applicant had asked to be

terminated would not justify the valid reason, nor would this be well founded. Although it

appears that Mr Bensley respected Mrs Fisher’s considerations based on her length of service,

and health issues, this process would be more defensible through giving her an opportunity to

respond, require her to undertake an independent medical examination or to consider the nature

of the call before making a final decision regarding her dismissal especially taking into account

her length of service.

[23] The Respondent had a valid reason for dismissal on the basis that Applicant was unable

to perform an inherent requirement of her role because of her capacity.”

 

Fisher v Carpet Call (Qld) Pty Ltd T/A Carpetcall [2023] FWC 1333 delivered 21 June 2023 per Lake DP