Unfair dismissal and capacity to work

There are occasions when the practical utility of an employee continuing to be employed become problematic when a third party declines to permit an employee to work or be on site. Here are some of the principles at play in that situation.

“Valid reason

[41] The evidence is that on 17 September 2021 the applicant, contrary to the safety rules he understood and had been trained in, entered an exclusion zone and was unfortunately injured.

[42] There was no acceptable reason for the applicant to have ignored the safety rules.

[43] The applicant’s failure to follow the safety rules was a valid reason for his dismissal related to his conduct.

[44] In the case of DA v Baptist Care SA 9 a Full Bench of the Commission explained that the concept of capacity in section 387 (a) of the Act, as a basis for a valid reason for dismissal, goes beyond the physical or skill capacity of an employee and also encompasses situations where employees do not have a necessary licence, certification, qualification or approval to lawfully perform the inherent requirements of their job.

[45] The Full Bench then considered the responsibilities of an employer in circumstances where the capacity of the employee to perform their job is affected by the actions of a third party and in short held that the employer still has an obligation to treat the employee fairly. Considerations which may arise in an assessment of whether the employer has acted fairly towards the employee 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.

[46] In this case the respondent’s client, Inghams Enterprises, has advised that in light of the incident on 17 September 2021 the applicant will not be allowed to work at any of their sites. There is no evidence that the respondent has any power to alter or modify or challenge Inghams’s decision.

[47] As to the capacity of the respondent to redeploy the applicant in light of Inghams refusing to allow him to work on their sites, the evidence is the respondent asked the applicant whether he has any skills that would allow the respondent to redeploy him elsewhere within his businesses, but he did not. Redeployment was considered but was not possible.

[48] Consequently, my decision is that the applicant is no longer able to lawfully work on Inghams which is separately a valid reason for his dismissal to do with his capacity”

Aguer v Temples (WA) Pty Ltd T/A Temples WA (2022) FWC 2014 delivered 29 July 2022 per Williams C