Australia: Fair Work Commission endorses approach to dismiss injured employee

WHO SHOULD READ THIS

  • All employers, human resource managers and in-house lawyers who manage employee absences and are involved in the dismissal of employees.

WHAT YOU NEED TO KNOW

  • An employee can be dismissed if they are unable to perform the inherent requirements of their substantive position and this assessment is supported by medical evidence.

WHAT YOU NEED TO DO

  • Before proceeding with dismissal, obtain clear medical evidence supporting the employee's inability to perform the inherent requirements of their position and consider whether reasonable adjustments can be made. If no such adjustments can be made, follow a procedurally fair process when proceeding with termination.

The Fair Work Commission (FWC) has endorsed the approach taken by an HR Department to dismiss an employee who could not perform the inherent requirements of her role.

Background

In Carley Jack v Sigma Healthcare T/A Sigma Healthcare [2019] FWC 6364, Ms Jack brought an application in the FWC alleging that her former employer, Sigma Company Limited (trading as Sigma Healthcare) (Sigma), unfairly dismissed her. Ms Jack was employed as a storeperson and was required to pick and pack orders and perform other physical tasks. In October 2017, Ms Jack was involved in a non-work related motor vehicle accident and sustained a back injury (and subsequently developed a mental illness). Following the accident, Ms Jack commenced personal leave and did not return to work before the termination of her employment on 8 February 2019.

In August 2018, Ms Jack met with Sigma to discuss her potential return to work and options to assist her, including changes to her hours of work and tasks. Ms Jack was taking medications at the time contravening Sigma's Fitness for Work Standard and making it unsafe for her to return to work. Ms Jack provided Sigma with certificates of capacity certified by her Osteopath indicating she had 'capacity for suitable employment' and could do 'all physical functions with modification'.

Following this meeting, Sigma requested reports from Ms Jack's treating doctors about her capacity for work and prognosis. In response, Sigma received conflicting evidence about Ms Jack's capacity to return to work and had no indication of when she would return to her pre-injury duties.

In January 2019, Sigma wrote to Ms Jack and advised they were considering terminating her employment due to her inability to perform the inherent requirements of her role. Ms Jack was provided with an opportunity to respond and to provide further information, including medical information. Ms Jack provided a medical certificate and letter from her treating Psychiatrist stating that she had been diagnosed with major depressive disorder with anxiety and PTSD. No estimated timeframe for her return to work was indicated.

On 8 February 2019, Ms Jack's employment was terminated on the basis that she was unable to perform the inherent requirements of her role at the time of termination and in the foreseeable future due to her physical and mental conditions. This assessment was based on her 15 month absence from work, medical evidence from her practitioners and statements she made to the HR team about her condition.

FWC decision

The FWC rejected Ms Jack's application and held that there was a valid reason for dismissal and that Sigma had adopted a procedurally fair process.

On finding a valid reason for dismissal, the FWC considered:

  • at the time of termination, Ms Jack was unable to perform the inherent requirements of her role. While her physical capacity was improving, the medical evidence of her mental state indicated that a return to work was not foreseeable. The medical certificate received from Ms Jack's treating psychiatrist in January 2019 stated that Ms Jack would be assessed again in two to three months. This was not an opinion that Ms Jack would be fit for work in the future, and was at best an opinion that if circumstances changed Ms Jack might become fit for work at some future time;
  • Ms Jack's incapacity to perform the requirements of her role was longstanding (over 12 months) and ought to be viewed in light of the lack of medical evidence indicating a foreseeable return to work; and
  • that whilst Sigma had considered whether any modifications could be made to Ms Jack's duties to address her physical injuries, no adjustments could be made to accommodate her mental incapacity. Ms Jack's position required her to work in a high-paced environment involving the use of forklifts and machinery, which required high levels of concentration and awareness.

The FWC also took into account the fact that Sigma kept Ms Jack's position open for a lengthy period of over 12 months.

Key lessons

Managing ill and injured employees on long-term absences is always challenging. Employers often shy away from dismissing these employees for fear of claims that may be brought. However, this decision demonstrates that employers can proceed with termination if the medical evidence clearly supports a finding that the employee cannot perform the inherent requirements of their substantive position at the time of termination and the requirements of procedural fairness are complied with. When obtaining medical evidence, it is important that the evidence addresses:

  • the employee's current and future capacity to perform the duties of the employee's substantive role (i.e. their pre-injury role);
  • the timeframe in which the employee will be in a position to return to their substantive role; and
  • any reasonable adjustments that can be made to the employee's substantive role, having regard to adjustments to address physical injuries and mental incapacity if the employee suffers from both.

Any material provided to treating practitioners or independent practitioners should accurately explain the duties of the employee's position including the type of environment the person works in. In this case, Ms Jack worked in a distribution centre, which was a high-paced environment requiring the use of forklifts and machinery. This became relevant when determining whether her mental condition affected her ability to return to her pre-injury duties. Sigma also requested medical evidence addressing both Ms Jack's physical and mental condition. While the medical evidence indicated Ms Jack had some capacity to return to work in respect of her physical injuries, it was clear that she had no capacity to return to work in respect of her mental health condition.

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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