If an employee is unable to meet the inherent requirements of their role due to illness or injury, it may be lawful for an employer to terminate their employment on the grounds of incapacity.
If an employee is unable to meet the inherent requirements of their role due to illness or injury, it may be lawful for an employer to terminate their employment on the grounds of incapacity.
In the matter of Scantlebury v BHP Coal Pty Ltd [2022] FWC 2261, the Fair Work Commission (FWC) was tasked with considering whether an employee’s incapacity to perform the inherent requirements of his role was sufficiently supported by medical evidence and therefore formed a valid reason for dismissal.
The employee worked as an Engineer Projects for BHP Coal Pty Ltd (the Employer).
Between the period of September 2020 and August 2021, the employee was absent from work due to personal issues resulting in him taking a total of 49 days of annual leave, 33 days of sick leave and being absent for 41 days without explanation, sufficient notice or requesting leave.
The employee eventually provided the Employer with a medical certificate in June 2021 advising that he was receiving medical treatment for a non-work-related injury and would only be fit to work for four days per week. To accommodate the restrictions on his capacity, the Employer implemented a temporary flexible working arrangement allowing the employee to work between home and on site.
In or around August 2021, the Employer placed the employee on a performance improvement plan (PIP) after identifying that he was failing to achieve the minimum deliverables of his role. The PIP detailed performance goals which were in line with the restrictions imposed by the medical certificates provided by the employee.
However, the PIP was soon cancelled after the employee submitted a further medical certificate certifying him unfit for any work.
The Employer directed the employee to undergo a series of independent medical examinations (IMEs) to obtain more information about his injury, his fitness for work and any accommodations required to facilitate his return to work. The IMEs found that the employee was suffering from extreme anxiety disorder and recommended against the employee returning to his substantial role unless he could perform work from home.
The Employer was unable to accommodate the restrictions imposed by the IMEs as the employee’s role required him to perform work at least partially on site. Accordingly, the employee was terminated from his employment in or around March 2022 on the grounds of incapacity to perform the inherent requirements of his role.
Before the FWC, the employee claimed that his dismissal was unfair, submitting that the Employer had maliciously implemented the PIP due to his request to reduce hours and it was designed to remove him from the business.
However, the FWC disagreed, finding that the employee’s performance issues were irrelevant to the application as it was not a reason relied upon by the Employer for the employee’s dismissal.
The FWC did not consider the Employer acted maliciously towards the employee throughout his employment, stating that in the contrary it went to “extraordinary lengths” to accommodate the employee’s absences by taking no disciplinary action and instead continuing to pay him without making any deductions to his leave balances.
Instead, the FWC considered the employee to have “little regard” for the Employer’s leave policies and simply failed to attend work for considerable periods of time.
Having regard to the IME reports, the FWC considered that there was a valid reason for dismissal given that the Employer was unable to accommodate the employee working from home as his role required a substantial portion of work to be performed on site.
Accordingly, the FWC found that the dismissal was not motivated for any reason other than the employee’s inability to perform the inherent requirements of his role and the Employer being unable to accommodate a suitable alternative role.
The FWC went on to state at [164]:
“When an employee experiences a non-work related illness or injury, an employer must do what it can reasonably do to accommodate a person’s restrictions. In the circumstances, it is not, in my view, required to move heaven and earth to find an alternative position for an ill or injured worker.”
The FWC therefore dismissed the application finding that the dismissal was not harsh, unjust or unreasonable.
Lessons for employers
The FWC will generally find termination of employment due to incapacity valid, provided that the employer can demonstrate through medical evidence that the employee cannot meet the inherent requirements of their role and no reasonable accommodations can be made.
As the employer correctly demonstrated in this decision, if there is any uncertainty surrounding the employee’s capacity to work it may be appropriate to seek further medical advice, or obtain a report from an IME, to ascertain whether the employee will be fit to continue in their usual occupation.
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