Ending an employment relationship is a delicate and difficult thing to manage at the best of times, and can become even more difficult when there is injury and incapacity involved. This weeks HR Highlight will explore the difficult question of ‘can a business terminate an employee that is unable to undertake the inherent physical requirements of the role?’.
In a recent case before the Fair Work Commission the facts aligned to neatly address this issue. The employee suffered a work related injury in April 2015. By June 2015 the employee had to cease work. The employee was placed on workers compensation leave and was managed through the workers compensation process. The aim of the process was to return the employee to pre injury duties. In a Fitness for Work Assessment that was undertaken by a doctor in March 2016 it was found that the employees fitness was such that they could not return to work in the near future, could not perform the inherent requirements of the job and that reasonable modifications at the workplace were not possible or appropriate.
Upon receiving this medical advice that the employee was currently unfit to complete the inherent physical requirements of the role, and that the conclusion of the medical professional was that fitness would be unlikely to be achieved in the near future, the business made the decision to have the employee “show cause” as to why they should not be dismissed.
A ‘Show Cause’ meeting and letter was undertaken, where the evidence of the doctors was outlined and the businesses conclusion that the employee no longer possessed the capacity to undertake the inherent physical requirements of the role. The employees comment, feedback and considered reasons, or “cause” for not being terminated due to physical incapacity, were sought and received.
The employee produced a certificate from her family doctor stating that they would be fit to return to pre injury duties from May 2016.
On consideration of these reasons, including the second medical certificate, the business determined, based on the medical assessment of the employee and the role initially undertaken, to terminate the employee for inability to perform the inherent requirements of the role.
The employee later claimed for Unfair Dismissal.
In making the claim the employee outlined that a conflicting assessment provided by the employees family doctor outlined that return to pre injury duties was possible. The Commission noted that while the second medical assessment did note the possibility of return to work, the initial assessment was the only one that had been undertaken in full consideration of the listed physical requirements of the role.
The Commission determined that the dismissal was not unfair, unjust or unreasonable. The Commission found that the reason for termination, namely the inability to undertake the physical requirements of the role, was justified based on the clear medical evidence presented to the business. Further the Commission noted that the employee was given every procedural fairness in understanding the process, being able to comment the situation and influence the decision through providing information.
What does this case mean for other businesses?
This case clearly outlines that when the circumstances are right, and procedural fairness is followed, that dismissal for inability to perform the inherent physical requirements of the role, is possible and lawful.
However it is worth nothing that this case had clear evidence in the form of a medical fitness for work assessment that stated the employee was unable to return to work in the foreseeable future. Such clear cut evidence is not common. Furthermore the nature of the business itself removed the possibility of alternative duties, which are often a factor in the return to work of injured staff at most businesses.
Finally this case reminds all businesses, that even when the reason is justified, it is important that the procedural elements are closely followed.
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HR Highlights are things to consider, implement and watch out for in your business. They are provided as general advice and you should seek further advice on your situation by calling 1300 160 270 and speaking to one of the ACAPMA Workplace Relations Professionals its free for members. ACAPMA membership is affordable at only $770 per year for a single site and valuable with sites gaining HR and IR advice support and representation as well as a raft of other benefits and discounts.