Sec 387 of the Fair Work Act provides inter alia that in considering whether a dismissal was unfair the Fair Work Commission must take into account where there was a valid reason for the dismissal related to the person’s capacity or conduct. “Capacity” is a reference to the ability of the employee to meet the requirements of the job which is a very wide concept and includes qualifications, physical ability and so forth. Here it is explained.
“[90] In DA v Baptist Care SA (Baptist Care),58 the Full Bench said:
The concept of “capacity” in s 387(a) as a basis for a valid reason for dismissal goes beyond the physical or skill capacity 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. 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.59 [footnotes omitted]
[91] The Full Bench went on to say that 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.60 Considerations which may arise in an assessment of whether the employer has acted fairly towards the employee in such situations may include the extent to which the employer has the power to alter, modify or challenge the outcome determined by the third party, the extent to which the employer has exercised that power, and the capacity of the employer to redeploy the employee to a position where the employee’s capacity is not affected by the third party’s conduct.61
[92] The Full Bench cited other decisions of the Commission which the parties also referred me to including Kool v Adecco Industrial Pty Ltd,62which was expressly approved by Full Benches in Pettifer v MODEC Management Services Pty Ltd (Pettifer)63 and Tasmanian Ports Corporation Pty Ltd t/a Tasports v Gee (Tasports).64
[93] In Pettifer, there was evidence before the Full Bench which demonstrated that the respondent, which was a labour hire employer, was bound by its contract with the host employer to remove an employee from the worksite when instructed to do so by the host employer. The respondent did not agree that the employee’s conduct justified his removal from the worksite but was nevertheless bound to comply with the host employer’s direction. As the employee was no longer capable of performing the inherent functions of his role, the respondent sought to find alternative employment for the employee. Only after exhausting these inquiries did the respondent rely on this reason to dismiss the employee. In these circumstances the Full Bench concluded that the respondent had a valid reason relating to the employee’s capacity to terminate his employment and only exercised this reason because it genuinely was unable to find suitable alternative employment for him.65 In that case the Full Bench arrived at the same conclusion as the Commission at first instance and found that the termination was not harsh, unjust or unreasonable.66
[94] In Tasports, the employer did not provide the Commission with a copy of the contract between it and the client, so it did not establish that the client in fact had a legal right to require the employee’s removal from the worksite or that the employer had no recourse to preserve theemployee’s employment at the site once that step had been taken. The employer did not form its own independent conclusion as to whether the employee had committed misconduct but instead essentially adopted the outcome of the client’s procedurally unfair investigation. Finally, the employer failed to adequately investigate options for Mr Gee’s redeployment.67 In that case the Full Bench upheld the Commission’s decision at first instance that the dismissal was unfair.68
[95] In Adecco, the terms of the contractual relationship between the labour hire company and the host employer were not in evidence before the Commission. The labour hire employer simply acquiesced in the host employer’s contention that the worker had engaged in misconduct without forming any independent view about whether this allegation was substantiated, in circumstances where the Commission found, on the evidence before it, that it was not. Further, the Commission found that a failure on behalf of the applicant’s employer to explore redeployment opportunities for the applicant constituted an element of unfairness in the circumstances of the applicant’s dismissal. Taking into account these and other matters, Deputy President Asbury, as she then was, found that there was no valid reason for the applicant’s dismissal related to her capacity or conduct69 and that the dismissal was unfair.70
[96] In the application before me, the evidence establishes that Aurelia was permitted by the contract between Aurelia and Redpath to remove Mr Quayle’s site access, and that there was no redress available to Redpath under the contract in respect of this action once Aurelia formed the subjective view that Mr Quayle was not properly performing his duties. The evidence also demonstrates that Redpath conducted its own inquiries in relation to Mr Quayle’s performance and attendance issues and did not simply adopt Aurelia’s findings.
[97] In relation to finding alternative employment opportunities, Mr Howard said that after he was notified that Mr Quayle’s site access had been revoked, he investigated possible redeployment to Federation Mine in central west New South Wales which was the next closest mine where Redpath operated, however there were no roles available. More recently, Mr Howard has made further inquiries with the recruitment team about Olympic Dam in South Australia and has been advised that there were no driller roles available there.
[98] Mr Quayle submits that Redpath’s efforts in relation to redeployment have not been sufficient, as Redpath operates in 14 countries and has 43 clients. It appears that Redpath’s identification of redeployment opportunities was confined to locations which it believed Mr Quayle could readily travel to from his home. Mr Quayle has not pointed to any specific locations which he claims that Redpath should have considered. As there is no evidence before me that Mr Quayle could have travelled to other Redpath locations in addition to Federation Mine and Olympic Dam, I am satisfied that Redpath genuinely was unable to find suitable alternative employment for him.
[99] Taking all of these matters into account, and applying the principles identified by Full Benches of this Commission in Baptist Care, Pettifer and Tasports, I find that Mr Quayle was dismissed after Aurelia revoked his site clearance and Redpath was unable to find suitable alternative work for him, and that these matters, when considered together, were a valid reason for dismissal based upon Mr Quayle’s capacity.”
Quayle v Redpath Contract Services Pty Ltd [2025] FWC 702 delivered 11 March 2025 per Wright DP