Cautious Approach Required For Dismissal Based On Incapacity

In Maharaj v Northern Health (2017), a nurse suffered a car accident and was unfit for work for nearly 16 months. Her employer then terminated her employment on the basis that she had “significant restrictions” on her ability to perform her pre-injury job, or alternatively, that she was likely to have “incapacity into the foreseeable future”.

However, the FWC ruled that the employee could have returned to her pre-injury duties on a graduated return to work program, building up, over time, to her normal hours of duty and as such, the Fair Work Commission (FWC) ruled that the employer did not have sufficient basis to dismiss. The employer failed to make inquiries about the employee’s work capacity, despite being aware of the possibility that the employee did have some capacity and wanted to discuss a return to work plan.

It is worth noting that this conclusion was reached notwithstanding that the employer relied on a Transport Accident Commission (TAC) Certificate of Capacity confirming the employee’s incapacity.

As well as breaching unfair dismissal laws, the employer also breached the Disability Discrimination Act by not making any inquiries as to whether or not the employee could perform the inherent requirements of the position with reasonable adjustments. It is worth noting that, whilst not claimed, the employee may have had grounds for a general protections claim pursuant to the discrimination protections under section 315 of the Fair Work Act 2009 (Cth).

The employer should have given the employee an opportunity to put anything to it prior to making the decision to dismiss, and send the letter terminating her employment. Failure to do this was another reason for the FWC determining the dismissal was unfair.

Written by Michael Turnell