Unfair dismissal; capacity for work

 

These passages from a recent unfair dismissal case discuss the legal considerations which factor in a capacity for work case.

“(29) In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the matters set out in s 387 of the Act. In my opinion it is clear that WIV had a valid reason to dismiss Mr Healy (s 387(a)). I find that at the time he was dismissed, Mr Healy did not have capacity for work and was unable to do his job. This was the opinion of his treating psychiatrist, Dr Russo, and the independent medical examiner, DrAdaji. At the hearing, Mr Healy contested the proposition that he had no capacity to work. What Mr Healy really meant was that he had a potential capacity for work which could be realised if certain things occurred. Mr Healy did not dispute that, without these things, he could not return to the workplace, and in this sense he had no present capacity for work at the time he was dismissed, because the conditions for his return had not yet been met.

 

(30) What were these conditions? One was that WIV engage in mediation with Mr Healy about his various workplace complaints. Another was that it consult with him about these matters and his return to work. It is not clear to me what the basis for, or content of, this second condition is said to be. Mr Healy often appeared to use the concepts of mediation and consultation interchangeably. Mr Healy rejected the suggestion that these were his conditions for returning to work, and contended that they were rather conditions that flowed from medical advice or that were established by or arose from the operation of occupational health and safety legislation. However I find that they were Mr Healy’s conditions insofar as he expected them to be met before he would be able to return to work. A third condition for his return to work concerned the management structure of WIV. Mr Healy said that for his own part, he would not consider it necessary for there to be any changes in the management structure in order to return to work. However, it is clear that the report of Dr Adaji suggested such changes because the doctor considered that Mr Healy could not presently work with Mr Hortle.

 

(31)In unfair dismissal cases where an employee has been dismissed for incapacity, it is relevant to consider both past and future incapacity. In my view, these factors should be considered under s 387(h) as other relevant matters. Demonstrated present incapacity is a valid reason for dismissal, but in some cases, a dismissal for this reason might nevertheless be harsh or unreasonable because, for example, the incapacity has lasted only a short time and the dismissal was hasty, or because the dismissal was premature in light of clear indications of a reasonable prospect of an imminent return to capacity. Another point of view might be that these circumstances affect the question of whether the reason for dismissal, incapacity, was in fact a valid one. In any event, I consider that in this case, both approaches lead to the same outcome: considerations of past and future incapacity support the conclusion that the dismissal of Mr Healy occurred for a valid reason and was not unfair in all the circumstances.

 

(32)As to past incapacity, Mr Healy had been absent from work for a very long time indeed. He had not done a day’s work in the past year and a half. WIV was far from hasty. It was very patient. It put its investigation into Mr Healy’s alleged misconduct on hold. It waited. But it could not wait forever. Then in July 2023 it received the independent medical examination report of Dr Adaji. Its conclusion was that Mr Healy had no present capacity for work. This aligned with the assessment of Mr Healy’s own psychiatrist, Dr Russo.”

 

 

Healy v Wage Inspectorate Victoria (2024) FWC 344 delivered 8 February 2024 per Colman

“”(29) In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the matters set out in s 387 of the Act. In my opinion it is clear that WIV had a valid reason to dismiss Mr Healy (s 387(a)). I find that at the time he was dismissed, Mr Healy did not have capacity for work and was unable to do his job. This was the opinion of his treating psychiatrist, Dr Russo, and the independent medical examiner, DrAdaji. At the hearing, Mr Healy contested the proposition that he had no capacity to work. What Mr Healy really meant was that he had a potential capacity for work which could be realised if certain things occurred. Mr Healy did not dispute that, without these things, he could not return to the workplace, and in this sense he had no present capacity for work at the time he was dismissed, because the conditions for his return had not yet been met.

 

(30) What were these conditions? One was that WIV engage in mediation with Mr Healy about his various workplace complaints. Another was that it consult with him about these matters and his return to work. It is not clear to me what the basis for, or content of, this second condition is said to be. Mr Healy often appeared to use the concepts of mediation and consultation interchangeably. Mr Healy rejected the suggestion that these were his conditions for returning to work, and contended that they were rather conditions that flowed from medical advice or that were established by or arose from the operation of occupational health and safety legislation. However I find that they were Mr Healy’s conditions insofar as he expected them to be met before he would be able to return to work. A third condition for his return to work concerned the management structure of WIV. Mr Healy said that for his own part, he would not consider it necessary for there to be any changes in the management structure in order to return to work. However, it is clear that the report of Dr Adaji suggested such changes because the doctor considered that Mr Healy could not presently work with Mr Hortle.

 

(31)In unfair dismissal cases where an employee has been dismissed for incapacity, it is relevant to consider both past and future incapacity. In my view, these factors should be considered under s 387(h) as other relevant matters. Demonstrated present incapacity is a valid reason for dismissal, but in some cases, a dismissal for this reason might nevertheless be harsh or unreasonable because, for example, the incapacity has lasted only a short time and the dismissal was hasty, or because the dismissal was premature in light of clear indications of a reasonable prospect of an imminent return to capacity. Another point of view might be that these circumstances affect the question of whether the reason for dismissal, incapacity, was in fact a valid one. In any event, I consider that in this case, both approaches lead to the same outcome: considerations of past and future incapacity support the conclusion that the dismissal of Mr Healy occurred for a valid reason and was not unfair in all the circumstances.

 

(32)As to past incapacity, Mr Healy had been absent from work for a very long time indeed. He had not done a day’s work in the past year and a half. WIV was far from hasty. It was very patient. It put its investigation into Mr Healy’s alleged misconduct on hold. It waited. But it could not wait forever. Then in July 2023 it received the independent medical examination report of Dr Adaji. Its conclusion was that Mr Healy had no present capacity for work. This aligned with the assessment of Mr Healy’s own psychiatrist, Dr Russo.”

 

 

Healy v Wage Inspectorate Victoria (2024) FWC 344 delivered 8 February 2024 per Colman DP