This passage from a recent unfair dismissal decision of the Fair Work Commission deals with the issue whether a failure by an employee to attend a medical examination organized by an employer to have the employee’s capacity to perform a role is a valid reason for dismissal.
“Was the Applicant unfairly dismissed?
[20] Section 387 of the Fair Work Act 2009 (Cth) (the Act) provides that, in considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);
(b) whether the person was notified of that reason;
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal;
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal;
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal;
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the Commission considers relevant.
- a) valid reason for the dismissal;
[21] It is well established that the factual basis for the reason for dismissal will not of itself demonstrate the existence of a valid reason.1 It must, as s.387(a) makes clear, be a valid reason for dismissal. To be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”2 and should not be “capricious, fanciful, spiteful or prejudiced.”3 As summarised by Deputy President Asbury in Smith v Bank of Queensland Ltd a “dismissal must be a justifiable response to the relevant conduct or issue of capacity”.4 The Commission must consider the entire factual matrix in determining whether an employee’s termination was for a valid reason.5
[22] The reason for the Applicant’s dismissal was the failure to attend multiple independent medical examinations which was a reasonable direction. This was a valid reason of dismissal given that the Respondent was enquiring about the Applicant’s capacity to work after being absent for over a year. If the Respondent is unable to assess the capacity of an employee after a long absence, then it will be assumed that the employee will not have the ability to complete the inherent requirements of the role.
[23] There was a valid reason for dismissal. “
Baker v Bodhicorp Pty Ltd ATF The Gadens Service Trust No 2 T/A Gadens Lawyers Brisbane [2024] FWC 2503 delivered 16 September 2024 per Lake DP