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
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  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.
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.
Kemp Strang has received acknowledgements for the quality of
our work in the most recent editions of Chambers & Partners,
Best Lawyers and IFLR1000.
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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