Organisations must be extra careful when dismissing employees due to illness or injury, as demonstrated in two recent unfair dismissal cases with alternative outcomes.
In Mwakichako v BHP Billiton WAIO Pty Ltd [2015] FWC 3160, BHP Billiton WAIO Pty Ltd (BHP) was successful in defending an unfair dismissal claim commenced by an employee after he was dismissed for being unable to perform the inherent requirements of his position.
The employee was diagnosed with a work-related respiratory illness in 2012 as a result of exposure to hydrocarbons. After a period of workers' compensation leave, the employee performed a modified role between January and September in 2014. BHP then made it clear that the employee's ongoing employment was conditional upon the employee securing a permanent position and that it "would ultimately be up to [the employee] to find a suitable employment opportunity".
When the employee was dismissed after being unsuccessful in applying for various alternative positions, the employee claimed that his dismissal was unfair because he was unable to "source an alternative role through the redeployment process".
The Fair Work Commission disagreed. It was held that the employee was validly dismissed because he was unable to carry out the inherent requirements of his substantive position. Further, the Commission noted that the dismissal could not be rendered unfair by virtue of the fact that the employee had been unable to source another position within BHP. The employee's criticisms of the recruitment and selection process for alternative positions did not undermine the valid reason of BHP to terminate his employment.
On the other hand, in Lawless v Qantas Airways Limited [2015] FWC 6456, Qantas Airways Limited (Qantas) was found to have unfairly dismissed an employee for largely the same reason, namely that the employee was unable to return to his pre-injury role. However the reason this dismissal was deemed to be harsh was due to apparent failures in the process leading up to the dismissal.
Qantas issued the employee with a 'show cause' letter stating its intention to terminate his employment on medical grounds; but provided the employee with seven days to reply and provide reasons (backed by medical evidence) for the employer not to proceed with the dismissal. Notwithstanding the employee then engaged a lawyer and sought clarification around the show cause letter (and its impact on his employment status), the employer proceeded with the dismissal in any event.
It was the fact that Qantas denied the employee this opportunity to adequately respond to the proposed reasons for dismissal which was deemed to be unfair.
These cases serve as a reminder that although a dismissal on medical grounds may be a "valid reason" for a dismissal, organisations must ensure that employees are afforded an adequate and reasonable opportunity to respond to any proposed decision to terminate before the decision is finalised.
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