In Anderson v Essential Energy  FWA 7423,
Anderson suffered permanent damage to his leg and ankle in an
accident at work in 2001. He later returned to work on light duties
and in 2006 became one of three Team Leaders, a role which was
compatible with his ongoing disabilities. A restructure in 2010
reduced the number of Team Leaders to two and he was unsuccessful
in applying for either of the remaining positions. He was
subsequently offered, and accepted, a position as an Electrical
Technician, a role he had in fact held before he became a Team
Leader in 2006.
Shortly afterwards, he complained about discomfort whilst
driving the vehicle that he used in the new role. He was medically
examined and deemed capable of performing his duties, subject to
certain limitations, but was subsequently dismissed on the grounds
that he was considered incapable of performing the 'inherent
requirements' of his job in its entirety. (Anderson maintained
that he had not in fact been made aware of the requirements of the
role before it was offered to him).
FWA found that he had been unfairly dismissed, as his various
managers had all been aware of the nature of his injuries and his
limitations before offering him the job and had offered
him the position 'modified in such a way that the Applicant was
capable of performing the role'. That modified position became
the job that he was capable of performing.
The moral of the story? If a capability dismissal is
contemplated, make sure that there is effective communication with
management and a proper understanding of the practical effects of
the employee's condition. (And don't forget to consult with
For more information about this update or any other employment
matters, please contact Tim Lethbridge or Kylie Wilmot on (08) 9321
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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