Termination of employment and inherent requirements

This extract from an unfair dismissal case deals with the legal issues which arise in a case concerning whether an employee’s physical health render the employee able to meet the inherent requirements of the job.

“Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct –

s.387(a)?

[30] In order to be a valid reason, the reason for the dismissal should be “sound, defensible

or well founded”28 and should not be “capricious, fanciful, spiteful or prejudiced29.” However,

the Commission will not stand in the shoes of the employer and determine what the Commission

would do if it were in the position of the employer30. The question the Commission must address

is whether there was a valid reason for the dismissal related to the employee’s capacity or

conduct (including its effect on the safety and welfare of other employees).31

[31] It is apparent from the evidence set out above that the Applicant was absent from work

for an extended period of time from August 2019. From September 2020 until the date of his

dismissal, the Applicant’s absences were supported by medical certificates. While the nature of

the various medical conditions suffered by the Applicant in that period were not disclosed to

the employer until 12 April 202332, the certificates provided by the Applicant made clear that

he had no capacity to perform his normal duties. From July 2022, the Applicant suffered a

serious medical condition that required him to undergo open heart surgery which, on his own

evidence, he is still recovering from.

[2023] FWC 1998

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[32] By August 2022, the Applicant had exhausted his accrued personal leave and was then

forced to take a mixture of unpaid sick leave, annual leave and a small amount of personal leave

that continued to accrue while he was taking other forms of authorised leave. Notwithstanding

the issues of non-payment of annual leave to the Applicant in the period from December 2022

to February 2023, which was subsequently rectified following the intervention of the FWO, it

is plainly apparent that the Applicant was not temporarily absent from work due to illness and

injury within the meaning of s 352 of the Act.

[33] The medical evidence supplied to the Respondent by the Applicant indicated that he

was unfit for work and gave no indication of when he would be fit to resume work. Moreover,

the Applicant conceded when giving evidence that he remained unfit for his pre-injury duties

and could not be certain if or when he would be able to resume work.

[34] I am satisfied on the basis of the medical certificates and reports provided to the

Respondent by the Applicant, that at the date of his dismissal on 26 April 2023, the Applicant

suffered from a medical condition that rendered him unable to perform the inherent

requirements of his role. Furthermore, in light of the conceded uncertainty of the Applicant’s

recovery period and in the absence of medical information that provided a prognosis or likely

return to work date, I am further satisfied that a return to work in the short to medium term was

unlikely.

[35] It is well established that an incapacity to perform the inherent requirements of a role

will generally provide a valid reason for dismissal, although not always so33. In the present case

there are no factors present that would militate against a conclusion that the Applicant could

not perform his role, had not been able to do so for various medical reasons since mid-2020 and

was not likely to be able to return to work in the short to medium term. In these circumstances

I am comfortably satisfied that the Applicant’s medical incapacity founded a valid reason for

his dismissal. This weighs in favour of a finding that the dismissal was not unfair.

Notification of the valid reason – s.387(b)

[36] Notification of a valid reason for termination must be given to an employee protected

from unfair dismissal before the decision is made to terminate their employment,34 and in

explicit35, plain and clear terms36

.

[37] The Applicant was notified in correspondence dated 22 March 2023 that his

employment was at risk based on his medical incapacity to perform his normal duties. He was

invited to provide medical evidence going to his fitness for work, absent the provision of which

it was foreshadowed that his employment would be terminated. I am consequently satisfied that

the Applicant was notified of the valid reason for his dismissal prior to the decision being made

to dismiss him. This weighs in favour of a finding that the dismissal was not unfair.

Opportunity to respond to any reason related to capacity or conduct – s.387(c)

[38] An employee protected from unfair dismissal should be provided with an opportunity

to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity

to respond is to be provided before a decision is taken to terminate the employee’s

employment.37

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[39] The opportunity to respond does not require formality and the factor is to be applied in

a common-sense way to ensure the employee is treated fairly.38 Where the employee is aware

of the precise nature of the employer’s concern about his or her conduct or performance and

has a full opportunity to respond to the concern, this is enough to satisfy the requirements.39

[40] In correspondence to the Applicant dated 22 March 2023, the Respondent set out its

concerns regarding the Applicant’s lengthy absence from work, his capacity to return to work

and foreshadowed that his employment would cease if he was unable to return to work. The

Applicant was also invited in that correspondence to provide by 5 April 2023 medical evidence

indicating whether he was able to perform “all aspects” of his position without restriction or if

he was likely to be fully fit in the near future.

[41] The Applicant ultimately responded to the above-referred correspondence by providing

a further medical certificate dated 29 March 2023 that simply indicated he would be unfit for

work from 25 March – 25 April 2023. On 24 April 2023 a letter from the Applicant’s treating

medical practitioner was also provided to the Respondent by the Applicant. That letter

confirmed that the Applicant remained unfit to perform his pre-illness duties and that the

timeframe for his return to work would depend on an unspecified period of recovery.

[42] I am satisfied that the Applicant was provided with an opportunity to respond to the

concerns regarding his capacity to resume his normal duties. He in fact did respond to the 22

March 2023 letter by providing further medical certificates. Regrettably, his medical condition

was such that he was unable to furnish medical evidence that would persuade the Respondent

to hold his position open indefinitely. That does not however indicate that he was denied an

opportunity to respond. As I am satisfied that that the Applicant was afforded an opportunity to

respond to the reason for his dismissal related to his capacity this factor weighs in favour of a

finding that the dismissal was not unfair.

Support person – s.387(d)

[43] Where an employee protected from unfair dismissal has requested a support person be

present to assist in discussions relating to the dismissal, an employer should not unreasonably

refuse that person being present.

[44] There is no positive obligation on an employer to offer an employee the opportunity to

have a support person:

“This factor will only be a relevant consideration when an employee asks to have a

support person present in a discussion relating to dismissal and the employer

unreasonably refuses. It does not impose a positive obligation on employers to offer an

employee the opportunity to have a support person present when they are considering

dismissing them.”40

[45] The process of communication with the Applicant regarding his fitness for work was

largely conducted via correspondence. While some conversations took place between Mr Spina

and the Applicant in relation to the leave application issues in the December 2022 – February

2023 period, at the point where the Applicant was formally put on notice regarding his

[2023] FWC 1998

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employment being at risk on 22 March 2023, there were no further direct discussions between

the Respondent and the Applicant. As such, the need for a support person in discussions did not

arise. This factor is therefore a neutral consideration.

Warnings regarding unsatisfactory performance – s.387(e)

[46] The dismissal did not relate to unsatisfactory performance. This factor is therefore not

relevant in the circumstances.

Impact of the size of the Respondent on procedures followed – s.387(f)

[47] The evidence of Mr Spina indicates that at the time of the Applicant’s dismissal the

Respondent employed approximately 800 employees. There is no evidence before me, and nor

did either party contend, that the Respondent organisation’s size impacted on the procedures

followed by it in dismissing the Applicant. This factor weighs neutrally in my consideration.

Impact of absence of dedicated human resources management specialist/expertise on

procedures followed – s.387(g)

[48] The evidence in this matter indicates that the Respondent had access to the services of

an in-house human resources specialist. This factor weighs neutrally in my consideration.

Other relevant matters – s.387(h)

[49] The primary contention of the Applicant in this case is that he should have been allowed

to exhaust his accrued annual leave and long service leave prior to dismissal. The records reveal

that at the date of his dismissal he had a combined accrual of annual and long service leave of

approximately 780 hours which if taken on a part-time basis would have enabled the Applicant

to remain on leave for a period in excess of twelve months. He contends that in circumstances

where he had been employed by the Respondent for over 17 years, he should have been afforded

the opportunity to exhaust his accrued leave, with the objective that this would have supported

him during his period of recovery following which he hoped to return to work.

[50] There is no doubt the Applicant had given long service to the Respondent during which

service he had accrued a considerable amount of leave. In these circumstances he had an

expectation that he would have been treated more favorably during an extended period of illhealth. Against this contention the Respondent refers to the extended period of the Applicant’s

absence from the workplace, with his last shift worked being in August 2019, and the lack of

any certainty on if or when the Applicant would be able to resume his pre-illness duties.

[51] I accept that at the time of his dismissal the Applicant had a large amount of accrued

annual leave and long service with the Respondent. Balanced against that is his extended period

of absence from the workplace of over 3.5 years, all of that period from September 2020 being

attributable to illness. More tellingly, the Applicant was unable to provide any indication of if

or when he would be able to resume his pre-illness duties. Rather, he wanted to remain

employed and be allowed to exhaust all his leave with the objective of returning to work subject

to his recovery, the timeframe for which he accepted was uncertain.

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[52] The Respondent was under no obligation to hold the Applicant’s role open indefinitely

in circumstances where it bore costs in doing so and where it had no indication of if or when

the Applicant would be able to resume his pre-illness duties. It had already provided an

extended period of support to the Applicant which was in my view appropriate in circumstances

where the Applicant had accrued personal leave available to cover the extended absence from

September 2020 covered by medical certificates. In all the circumstances I do not regard the

Applicant’s length of service or his being denied an opportunity to exhaust his accrued leave

entitlements prior to dismissal as weighing in favour of harshness.

[53] Another matter raised by the Applicant in the proceedings was that of his claiming to

have been forced to take annual leave in the period between August 2019 and September 2020

because the Respondent failed to provide him work. This he contends had an impact on his

accrued leave entitlements that ought to have been available to him at termination. The

Respondent challenged the Applicant’s claim and pointed to evidence that shifts were offered

to and declined by the Applicant following the loss of his client in August 2019. The Applicant

countered by stating that any work offered was unsuitable as it was on a casual basis and not in

the locality where he lived.

[54] There was insufficient evidence before me to form a view as to whether the Applicant

was forced to take leave as he contended. In any case, the Applicant’s absences since September

2020 were due to medical incapacity and I accept that conduct of the Respondent between

August 2019 and September 2020 in relation to whether suitable work was or was not offered

to the Applicant is not relevant to my findings regarding a valid reason for the Applicant’s

dismissal. Nor for the reason set out immediately above regarding the accrued leave available

to the Applicant at the date of dismissal does it weigh in favour of a finding of harshness.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust, or

unreasonable?

[55] I have made findings in relation to each matter specified in s.387 of the Act as relevant.

I must consider and give due weight to each as a fundamental element in determining whether

the termination was harsh, unjust, or unreasonable.41

[56] As set out above, I am satisfied that a valid reason for the Applicant’s dismissal related

to his capacity has been established and that the dismissal process followed by the Respondent

was procedurally fair. The dismissal was not related to the Applicant’s performance and the

size and capacity of the Respondent did not impact on the procedures that it followed and as

such these matters weigh neutrally in my consideration of whether the dismissal was unfair. No

other matters considered weigh in favour of a finding that the dismissal was unfair.

[57] It follows from the above that having considered each of the matters specified in s.387

of the Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust, or

unreasonable because there was a valid reason for the dismissal and no other factors weigh in

favour of a finding that the dismissal was unfair.

[2023] FWC 1998

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Conclusion

[58] Not being satisfied that the dismissal was harsh, unjust, or unreasonable, I am not

satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the Act.

[59] The application is dismissed. An Order will be separately issued giving effect to my

decision.”

 

Monty v Independence Australia Group T/A Independence Australia [2023] FWC 1998 delivered 11 August 2023 Masson DP