The Fair Work Commission will uphold the validity of a dismissal where an employee through accident or injury cannot fulfill the inherent requirements of the job.
“It was submitted for Ms Daunis in closing submissions that she does not cavil with the proposition that she did not have capacity to perform the inherent requirements of her role at the time of termination. That concession was appropriate, and I am satisfied the medical reports available to the Respondent at the time of dismissal support the conclusion that Ms Daunis could not perform the inherent requirements of her role at that time.
[87]
It was submitted for Ms Daunis that the IME assessor Dr Jones opined that Ms Daunis would be able to return to her pre-injury duties within a month, or at worst following surgery in November 2025. The section in the IME report under the heading “Current Status and Symptoms” included an opinion that Ms Daunis “…should be able to return to work in the foreseeable future…”. A reference was also made to a sentence under the heading “Daily Activities/Tolerances” referring to progressive improvement.
[88]
It was submitted for Ms Daunis that the IME under the heading “Consideration of Duty of care Issue…” includes the following “Once she has recovered from surgery, if successful, this should enable her to return to a normal working future…”
[89]
Further, under the heading “Assessment” the report includes an opinion that compression stockings should reduce symptomatic effects of pain and swelling enabling her to return to work within the next month or so.
[90]
The report goes on to say Ms Daunis may benefit from reduced working days per week or hours per shift to facilitate and maintain her return to work until November when surgical treatment is planned to the superficial veins in the leg. If this is successful, this should provide an opportunity for her to attend work on a more sustained basis.
[91]
It was further submitted for Ms Daunis that the final paragraph under the heading “Assessment” includes the following: ‘She will require to remain on long term anticoagulant medication as she has an underlying genetic disorder. As such, there can be no absolute guarantees about the risk of recurrence of DVT’s in the future, however this is as well managed as it can be and does not require any modifications to her duties or working hours. She should be fit for the full inherent duties of her role once she has recovered from planned surgery.”
[92]
The Respondent relies on this same paragraph to submit that given Ms Daunis medical history, and her regular absences from work and the high risk of further blood clots because of the nature of the work, the assumption in the IME report places the Respondent in an impossible position of having to manage an obvious risk to Ms Daunis’ health and safety.
[93]
The Respondent submitted managing the risk is further complicated by the inconsistent and contradictory medical advice received from Ms Daunis’ specialist Dr Hagley. The Respondent submitted Dr Hagley’s report of 14 May 2025 said the Applicant was safe to return to work, but in the next paragraph contradicts this saying Ms Daunis’ functional capacity and ability to perform her duties is highly variable, and her improvement cannot be accurately predicted over the next three months, and certifies that Ms Daunis needs three months off work from 14 May to 14 August 2025. The Respondent submitted this confusing and contradictory advice made it impossible to manage its legal obligation to mitigate or manage the risk.
[94]
The Respondent submitted the assessment of whether Ms Daunis would be considered fit to return to work in the foreseeable future was further complicated by her medical condition of Factor V Leiden that is not cured by surgery. The Respondent submitted the same blood thinners prescribed to manage the DVT create another risk if Ms Daunis is cut or falls. Further, the report says that Ms Daunis’ condition is aggravated by gravitational hydrostatic effects from prolonged standing or walking. The Respondent submitted standing and walking around on board the ferry is intrinsic to her role.
[95]
Finally, the Applicant relies on the third last paragraph of the report on page 43 of the Court Book referring to the planned surgery in November, and that this should result in a significant improvement such that once recovered she will be able to resume normal working hours and duties on a sustained basis.
[96]
The Respondent pointed to the evidence that Mr Simpson suggested Ms Daunis could return to work on a casual or part time basis immediately despite the IME report saying in several places that Ms Daunis was not fit to return to work at the time of termination.
[97]
The Respondent referred to the last sentence of the first paragraph on page 3 of the IME report under the heading which reads as follows: “Assuming all goes well in this respect, she should be in a position to provide a sustained improvement to work attendance thereafter.” The Respondent submitted the IME made numerous assumptions about Ms
Daunis returning to work based on working restricted working hours or days which Mr Rigby testified were not possible.
[98]
Having considered all of the evidence and submissions I do not accept that the IME report conclusively determined that Ms Daunis could fulfil the inherent requirements of her role in the future. I am satisfied that the evidence does not support such a conclusion. I accept that while the medical evidence is inconsistent and contradictory, when considered overall as at the time of the termination it fell well short of clearly indicating Ms Daunis would be fit to return to her full duties in the foreseeable future, and instead was premised on assumptions about factors including the scheduled surgery in November 2025.
[99]
It has been argued for Ms Daunis in relation to reasonable adjustments that at its highest the Respondent’s case relies on supposed operational difficulties, but that the Respondent led no evidence of genuine consideration of these matters. It is submitted for Ms Daunis the Respondent could have provided Ms Daunis a period of convalescence that her condition required.
[100]
The Respondent submitted Mr Rigby gave evidence as to why it was not possible to reduce Ms Daunis’ working hours, meaning the Respondent could not make reasonable accommodations. The evidence is Ms Daunis works a fixed roster with only 6 split shifts over a four-week period, and there is not the flexibility in the roster to make the accommodations proposed for Ms Daunis.
[101]
I have considered all of the evidence concerning the nature of the rostering arrangements on the ferries, and I accept, taking into account the nature of the working arrangements, and the impact on other staff, and cost to the Respondent in making accommodations as proposed for Ms Daunis that they are not practical or reasonable in this case, and that there was no reasonable adjustment that could have been made to Ms Daunis role to accommodate her current or future incapacity given the nature of her role. For the reasons set out above I am satisfied the Respondent had a valid reason for dismissal.”
Daunis v Rivercity Ferries Pty Ltd [2026] FWC 740 per Simpson C