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Can an employee with a medical condition be dismissed?

Employers need to be mindful of their obligations under the Fair Work Act when responding to employees with limited capabilities because of various medical conditions. This was especially noted in the recent 2019 Fair Work case of Carley Jack v Sigma Healthcare[1]  wherein the court considered whether an employees termination was reasonable in light of her medical conditions.

Background:

Carley Jack had been employed at Sigma Healthcare for 6 years before being terminated on 8 of February 2019 on the basis that she was unable to perform the inherent requirements of her role.  Prior to her termination in February, Carley had been on personal leave for 16 months following a motor vehicle accident in October 2017, where she sustained significant injuries. As a result of these injuries, she had no capacity to work in the subsequent 6 months.

The issue to be assessed was whether Carley had, or would have in the future, the capacity to return to her pre-injury role.  Medical advice was given by Carley’s treating practitioners, Dr Robinson (Osteopath) and Dr Daoud and Dr Mathur as to her condition and capacity to return to work. Dr Robinson provided certificates supporting Carley’s capacity to return to suitable work between September and October 2018. However, after an assessment in December 2018, her general practitioner Dr Daoud, concluded that she would not be able to perform any duties at that stage. Following this, evidence was provided by her psychiatrist, Dr Mathur, who also concluded that Carley would have no capacity to return to work.

The employers (Sigma Healthcare) informed Carley on the 7 January 2019, that they were “seriously considering terminating her employment on the basis of an inability to perform the inherent requirements.” Carley received the letter of termination on the 18 January 2019 which would come into effect upon the expiration of her notice period on 8 February 2019.

What did the Commission consider?

In assessing an unfair dismissal claim, the Commission must be satisfied that the dismissal was harsh, unjust or unreasonable. The commission must have regard to the matters outlined in s387.  This case turned specifically on whether Carley’s alleged incapacity to perform the inherent requirements of her role, was a valid reason for the purposes of section 387(a).

Legal Issues:

  1. Was there a valid reason for Carley’s termination under s387(a):

The following elements were considered relevant in assessing  dismissal based on an inability to fulfill the inherent requirements of the role in: Jetstar Airways Pty Ltd v Neeteson-Lemkes[2]

  • Did Carley suffer from the alleged physical and mental incapacity?
  • Was Carley capable of performing the inherent requirements of her role at the time of her dismissal?
  • Would Carley have capacity in the future to perform the inherent requirements of the role?
  • Were there any reasonable adjustments that Sigma Healthcare could have made to account for Carley’s physical and mental incapacity?

The first determination to be made, as outlined in CSL Limited v Papaioannou (CSL)[3], is whether Carley, at the time of her termination, suffered from the alleged incapacity. The Commission, based on the relevant medical evidence of Carley’s practitioners, found that she did in fact suffer from the alleged physical and mental incapacities.  Additionally, there was no dispute between the parties as to Carley’s incapacity to fulfill the inherent requirements of her role at the time of her dismissal.

The issue in contention was in regards to Carley’s future capacity to return to work. The Commission relied on the provided medical evidence in concluding that whilst her physical capacity was improving, the state of her mental condition was such that a return to work was not foreseeable. At best, the medical evidence demonstrated only, that Carley may, at some point in the future become fit for work where circumstances change accordingly.

In concluding that Carley’s medical condition rendered her incapable of performing the inherent requirements of her role, the Commission referenced both, the significant period of 12 months wherein she was unable to be present at work, and, the absence of any medical evidence indicating a foreseeable return to the workplace. In addition, it was found that there were no reasonable adjustments which could have been made by the employer to accommodate for Carley’s mental incapacity.

What was the Commission’s Decision?

The commission found that Carley had been dismissed for a valid reason, being her inability to perform the inherent requirements of the role due to her physical and mental capacity, which would not be accommodated for by any implementation of reasonable adjustments. Accordingly, the dismissal was not harsh, unjust or unreasonable for the purposes of section 385.

Takeaway Points:

This case highlights the important role that sufficient medical evidence will play when considering the capacity or lack thereof, of an employee to fulfil the inherent requirements of their role. Moreover, it indicates that the Fair Work Commission will give considerable weight to an employers conduct with respect to incapacitated employees in determining whether a dismissal was harsh, unjust or unreasonable in the circumstances. Here, the lengthy period within which, Sigma Healthcare kept Carley’s position open was a significant factor in the Commissions finding that she had been terminated for a valid reason.

Author:  Brittany Everett

[1] T/A Sigma Healthcare (U2019/1119)

[2] [2013] FWCFB 9075

[3]  [2018]  FWCFB 1005

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