Tribunal says medical incapacity justifies dismissal…just follow these rules
In the recent case of Miss Carley Jack v Sigma Healthcare T/A Sigma Healthcare  FWC 6364, the Fair Work Commission (‘FWC’) found the dismissal of an injured employee who was unable to perform the inherent requirements of her job was not unfair.
Miss Carley Jack (‘Applicant’) was employed as a Store Person by Sigma Healthcare (‘Respondent’) from 22 January 2013 until she was terminated on 8 February 2019. In October 2017, the Applicant was injured in a non-work related motor vehicle accident which resulted in her not returning to the workplace. She was receiving compensation from the Transport Accident Commission.
During the Applicant’s period of absence she either had no capacity for work or limited capacity for work due to her physical and mental restrictions as certified by various health practitioners. The Respondent contended that it was unable to accommodate these restrictions given the inherent requirements of her job as a Store Person.
On 7 January 2019, the Respondent wrote to the Applicant stating it was “seriously considering terminating [her] employment on the basis of your inability to perform the inherent requirements of the position” and invited the Applicant to a meeting to provide further information including medical information prior to making a decision.
On 16 January 2019, the Applicant provided the Respondent with a certificate of capacity from her psychiatrist indicating she had no capacity for work from 16 January 2019 to 15 February 2019. The clinical diagnosis was ‘major depressive disorder with anxiety with PTSD’ and the Applicant’s attention and concentration were affected. The psychiatrist left blank the part of the certificate relating to an estimated timeframe for return to work. The Applicant also provided a letter from her general practitioner recommending she not work due to her medications causing drowsiness until a new assessment is conducted after 2 to 3 months.
On 16 January 2019, the Applicant participated in a teleconference with the Wellbeing and Injury Management Advisor for the Respondent whereby she confirmed her agreement with her general practitioner’s assessment that “she cannot perform any duties at that stage”.
On 18 January 2019, the Applicant participated in a teleconference with the Operations Manager/2IC to the State Distribution Manager for the Respondent. The Applicant was told the Respondent could no longer keep “her job open” and later that day was issued a letter confirming the termination of her employment, effective upon the expiration of her notice period on 8 February 2019. The grounds stated for her termination were the inability to perform the inherent requirements of her role and that there were no other suitable positions available within the business.
On 4 February 2019, the Applicant lodged an application for unfair dismissal. The matter could not be resolved and was heard by Commissioner Cirkovic by way of hearing on 22 July 2019. In assessing whether the dismissal was unfair based on the requirements of section 387 of the Fair Work Act 2009, Commissioner Cirkovic had to first determine whether there was a valid reason for the dismissal relating to the Applicant’s capacity or conduct (including its effect on the safety and welfare of other employees).
In order to make this assessment, Commissioner Cirkovic adopted the Full Bench decision of Jetstar Airways Pty Limited v Ms Monique Neeteson-Lemkes  FWCFB 9075 which required consideration of three interconnected elements: firstly, whether the Applicant was capable of performing the inherent requirements of the role as at the date of dismissal; secondly, whether the Applicant would be able to perform the inherent requirements of the role at some time in the future; and thirdly, whether there was some reasonable adjustment which could be made to the role to accommodate any current or future incapacity.
There was no dispute that at the time of dismissal the Applicant was unable to perform the inherent requirements of her role as Store Person. In relation to performing the inherent requirements of the role at some time in the future, Commissioner Cirkovic assessed the psychiatrist and general practitioner medical evidence and concluded that while the Applicant’s physical capacity was improving, the medical evidence of her mental state indicated that a return to work was not foreseeable. The Applicant conceded the Respondent was unable to modify the work environment to accommodate her medical condition and Commissioner Cirkovic was satisfied the role could not be adjusted to accommodate her mental incapacity.
Commissioner Cirkovic was satisfied the Respondent’s process prior to notification of dismissal gave the Applicant an adequate opportunity to respond. Commissioner Cirkovic considered other factors including the financial loss causing personal hardship and possibly missing out on a redundancy package but these were dismissed. It was noted the Applicant was receiving compensation and this would continue, the Respondent had left the Applicant’s role open for over 12 months and conducted a procedurally fair process. On this basis Commissioner Cirkovic found the dismissal was fair and dismissed the application.
In order to avoid a successful unfair dismissal claim employers should be mindful of the requirements of section 387 of the Fair Work Act 2009 and in particular the three elements required to be satisfied in order to prove there was a valid reason for dismissal.
If you would like to know more about the implications of this decision, please contact a Mapien consultant on +61 7 3833 1200.