In a recent case before the Fair Work Commission further clarity around the termination of employees who are not able to meet the inherent physical requriements of the role.  This weeks HR Highlight Case Review explores this case of incapacity and claims of bullying.

In this case the employee claims that he was unlawfully dismissed for making a workers compensation claim due to bulling which led to psycological injuries have been rejected.

The employee contended that the business wanted to “get rid of him” and that it first alleged misconduct but their efforts to “sack” him for that were “thwarted” when he sought workers compensation for bullying.  The employee claims that as a result of the lodgement of the workers compensation cliam his managers contributed to his illness by ignoring him prior to dismissing him.

In responding to the claim the business noted that the when the employee went on leave he was subject of a formal performance management process and had received two warnings arising from customer complaints, and that the employee was dismissed after being unfit to work for over a year.  The business also noted that employee was declared by his own doctor to be unable to return to pre-injury role and that as such the employee was dismissed for inability to meet the inherent requriements of the role, and not for the lodgement of any workers compensation claim.

In heanding down the decision DP Ashbuy outlined that he was satisfied that the business implemented an injury management plan and had met its oblications in participating and cooperating with that plan.


This case highlights the need for clear process when managing injuries, including psycological injuries in the workplace, particularly when those injuries are work related.

However if the business engages with the return to work plan and the employee remains unfit for work termiantion for incapacity is appropriate, provided the proper procedural fairness is demonstrated – see for more on appropriate communications.

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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 emailing its free for members. ACAPMA membership is affordable at only $880 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.

Elisha Radwanowski BCom(HRM & IR)