Unfair dismissal for capacity issues

It is not uncommon for an employer to terminate the employment of a person where the employer takes the view that the employee is unable to fulfill the inherent requirements of the job.

However for a dismissal on that basis to be relevantly fair there are generally several boxes which the employer must tick as is evident from the following passages from such a case recently in the Fair Work Commission.

“A reason will be “related to the capacity” when the reason is associated or connected with the ability of the employee to do his or her job.22 A capacity related reason for dismissal might be concerned with an employee’s performance, the employee’s physical capacity to perform the work, the loss of a qualification or licence necessary to perform the work, or an inability to perform the inherent requirements of the job because of some injury, illness or other disability. 23 In a dismissal related to the person’s capacity, s387(a) requires the Commission to consider and make findings as to whether, at the time of dismissal, the applicant suffered from the alleged incapacity. The assessment of capacity is to be determined by the Commission based on its assessment of the evidence.24

Assessing the validity of a capacity-related reason involves three considerations; whether Ms Diabel was capable of performing the inherent requirements of her role as at the date of her dismissal; whether Ms Diabel would be able to perform the inherent requirements of the role at some time in the future; and whether there was some reasonable adjustment which could be made to Ms Diabel’s role to accommodate her incapacity…………………….Having regard to the medical evidence before me and the evidence of Ms Diabel regarding her capacity at the time of her dismissal, I find that Ms Diabel was incapable of performing the inherent requirements of her role as a Train Driver with Metro Trains as at the date of her dismissal. Given the nature of her incapacitation Ms Diabel was not capable of returning to work in any capacity and there were no reasonable adjustments that could have been contemplated by Metro Trains. Further, Ms Diabel had provided a certificate from her treating Doctor that had determined she would be fully incapacitated until August 2021. At the time of her dismissal Ms Diabel provided no evidence that she would be able to return to work in the foreseeable future.

Having had regard to the circumstances before me, I am satisfied there was a valid reason for the termination of Ms Diabel’s employment relating to her capacity.”

Diabel v Metro Trains Melbourne Pty Ltd  [2021] FWC 6020 delivered 5 November 2021 per Harper-Greenwell C