One of the matters which is considered by the Fair Work Commission when determining an unfair dismissal case is whether there was a valid reason for the termination of employment based upon the conduct or capacity of the employee to do the job.
This is what the Commission’s unfair dismissal benchbook says about the latter issue.
“Capacity
Capacity is the employee’s ability to do the job as required by the employer.[1] Capacity also includes the employee’s ability to do the work they were employed to do.[2]
The appropriate test for capacity is not whether the employee was working to their personal best, but whether the work was performed satisfactorily when looked at objectively.[3]
Inherent requirements
The concept of capacity in s.387(a) as a basis for a valid reason for dismissal goes beyond the physical capacity or skill of the employee, and encompasses situations where employees do not have or maintain the necessary licence, certification, qualification, approval or accreditation to lawfully perform the inherent requirements of their job.[4]
Inability to perform the inherent requirements of the position may be a valid reason for the termination of an employee. This issue was considered in J Boag & Son Brewing Pty Ltd v Button: 309
Where an employer relies upon an employee’s incapacity to perform the inherent requirements of his position or 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 considered. (emphasis added).
The situation may arise where an employer dismisses an employee as a consequence of a mandatory assessment by a third party which removes the capacity of the employee to perform an inherent requirement of the job, including where a tradesperson who is required to be licenced has the
license cancelled, where a professional fails to maintain their mandatory certification to practise, where a court imposes a custodial sentence on an employee, and when a host employer refuses to accept labour from an employee of a labour hire agency.[5]
In a situation where an employee’s capacity to perform the inherent requirements of their job is affected by the actions of a third party, the employer still has an obligation to treat the employee fairly.[6]
Where an employee cannot perform the inherent requirements of their job and there is no reasonable scope for the employee to be redeployed into another role, it is likely that there will be a valid reason for dismissal based on the employee’s capacity.[7] “
[1] Walton v Mermaid Dry Cleaners Pty Limited [1996] IRCA 267 (12 June 1996), [(1996) 142 ALR 681 at p. 684].
[2] Webb v RMIT University [2011] FWAFB 8336 (Drake SDP, Hamilton DP, Jones C, 8 December 2011) at para.
6.
[3] Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000) at para. 62, [(2000) 98 IR 137].
[4] DA v Baptist Care SA [2020] FWCFB 6046 (Hatcher VP, Simpson C, Hunt C, 20 November 2020) at para. 28. 309 J Boag & Son Brewing Pty Ltd v Button [2010] FWAFB 4022 (Lawler VP, O’Callaghan SDP, Williams C, 26 May 2010) at para.22, [(2010) 195 IR 292].
[5] DA v Baptist Care SA [2020] FWCFB 6046 (Hatcher VP, Simpson C, Hunt C, 20 November 2020) at para. 19.
[6] DA v Baptist Care SA [2020] FWCFB 6046 (Hatcher VP, Simpson C, Hunt C, 20 November 2020) at para. 32.
[7] DA v Baptist Care SA [2020] FWCFB 6046 (Hatcher VP, Simpson C, Hunt C, 20 November 2020) at para. 28. 313