Dismissal based on employee’s inability to perform inherent requirements of the role

Case: Ms Carley Jack v Sigma Healthcare T/A Sigma Healthcare (U2019/1119).

Area of Law: Employment – Unfair dismissal

Act: Fair Work Act 2009 – s 394. Application for unfair dismissal remedy

Background:

Ms Carley Jack had been employed at Sigma Healthcare for 6 years before being terminated on 8 of February 2019. Ms Jack was terminated on the basis that she was unable to perform the inherent requirements of her role.  Prior to her termination in February, Ms Jack had been on personal leave for 16 months following a motor vehicle accident in October 2017, where she sustained significant injuries.

Prior to her accident Ms Jack mainly worked as a Grade 2 Storeperson. Her duties including picking and packing orders, labeling boxes, operating carousel, stock and general cleaning, and operating forklifts. For six months following the accident, Ms Jack had no capacity to return to work and complete these duties.

The issue to be determined was whether Ms Jack had, or would have in the future, the capacity to return to her pre-injury role.  Medical advice as to her condition and capacity to return to work was given by Ms Jack’s treating practitioners, Dr Robinson (Osteopath), Dr Daoud (gp) and Dr Mathur (psychiatrist).

Dr Robinson provided certificates supporting Ms Jack’s capacity to return to suitable work with lighter duties 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. Her psychiatrist also provided evidence supportive of Dr Daoud’s conclusion.

The employer informed Ms Jack on the 7 January 2019, that they were “seriously considering terminating her employment on the basis of an inability to perform the inherent requirements”. Ms Jack 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 of the Fair Work Act 2009 (Cth).  This case specifically focused on whether Ms Jack’s alleged incapacity to perform the inherent requirements of her role was a valid reason for the purposes of s387(a).

Legal Issues:

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

The following elements were considered relevant in considering a dismissal based on an inability to fulfill the inherent requirements of the role in Jetstar Airways Pty Ltd v Neeteson-Lemkes [2013] FWCFB 9075.

  • Did Ms Jack suffer from the alleged physical and mental incapacity?
  • Was Ms Jack capable of performing the inherent requirements of her role at the time of her dismissal?
  • Would Ms Jack 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 Ms Jack’s physical and mental incapacity? (Elements Involved)

The first determination to be made, as outlined in CSL Limited v Papaioannou (CSL) [2018] FWCFB 1005, is whether Ms Jack, at the time of her termination, suffered from the alleged incapacity. Based on the relevant medical evidence of Ms Jack’s practitioners, the Commission found that she did in fact suffer from the alleged physical and mental incapacities.  Additionally, there was no dispute between the parties as to Ms Jack’s incapacity to fulfill the inherent requirements of her role at the time of her dismissal.

The main issue in contention was in regards to Ms Jack’s future capacity to return to work. The Commission relied on the provided medical evidence to conclude that whilst her physical capacity was improving, the state of her mental condition was such that a return to work was not foreseeable.

In addition, based on the medical evidence before the Commission, it was evident that the employer’s view at the time of dismissal, that Ms Jack would not be able to return to work to fulfil duties as a Storeperson Grade 2, was not contrary to any medical opinion in existence at or about that time. At best, the medical evidence demonstrated only that Ms Jack may, at some point in the future, become fit for work where circumstances change accordingly.

In concluding that Ms Jack’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, the Commission also highlighted that there were no reasonable adjustments which could have been made by the employer to accommodate for Ms Jack’s incapacities.

When making its decision, the Commission also took into account other relevant matters including that in considering the harshness of a termination decision, the employer took into account that Ms Jack was receiving compensation as a result of the accident and her absence from work, and would continue to do so and the “fair go” principle applied to the employer means that weight should be given to the lengthy period that the employer kept Ms Jack’s position open, and the procedurally fair process conducted by the employer.

What was the Commission’s Decision?

The Commission held that at the time of termination, Ms Jack could not perform the inherent requirements of her substantive role, the employer kept Ms Jack’s role open for a lengthy period of over 12 months and the state of the medical evidence at the time of termination was such that the employer had a valid reason for termination. Accordingly, the dismissal was not harsh, unjust or unreasonable for the purposes of section 385.

Furthermore, the Commission found that Ms Jack was notified of the reason for dismissal before her dismissal took place, she was given a reasonable opportunity to respond and there was no unreasonable refusal to allow a support person

Takeaway Points:

This case serves as an important reminder to all employers that their conduct when dealing with employees who are suffering from a mental or physical disability will be given considerable weight when determining if the dismissal was harsh, unjust or unreasonable. When dismissing employers who are dealing with injury or disability, it is crucial that employers ensure that based on the medical evidence presented, they cannot perform the inherent requirements of their role and no suitable arrangements could be made for an alternative role. In addition, the time period of which the role is kept open and the state of the medical evidence will play crucial roles in the outcome.

Written by: Fran Keyes, Brittany Everett and Elyse Staunton

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