In the recent decision of Grujicic v Lineage Aust Trs Pty Ltd [2024] FWC 3526, the Fair Work Commission (FWC) found that an employer’s incorrect assumptions about an employee’s capacity to fulfill the inherent requirements of their position were harsh and unreasonable and did not form a valid reason for dismissal.
At the time of dismissal, the employee had been employed by Lineage Aust Trs Pty Ltd (the Employer) for 23 years and was responsible for moving stock within a chiller room that was between zero and five degrees Celsius, and a freezer room which was minus 22 degrees Celsius.
During his employment, the employee was diagnosed with cancer and underwent invasive surgery. As a result, the employee was subject to a suitable duties plan that included some restrictions on the type of work he could perform and number of breaks he should take.
In August 2023, the Employer reviewed the employee’s suitable duties plan and requested the employee obtain up-to-date medical advice and a medical assessment for his prognosis.
In February 2024, the employee’s specialist medical physician provided advice that the employee’s susceptibility to the cold would “continue indefinitely” and suggested a “trial of 15 minutes [in the cold environment] followed by a brief warm break and then increase from there as able”.
The Employer was not satisfied with this response and requested that the employee get medical clearance from his medical physician to continue working. However, the medical physician was a specialist in the public health system with a significant waiting time for an appointment, meaning the employee could not secure an appointment until June 2024.
In early March 2024, the Employer requested to meet with the employee who declined, stating he was suffering from anxiety/depression and would not return to work until April 2024.
In April 2024, the Employer initiated a show cause process and ultimately terminated the employment relationship on the basis that the employee was unable to perform the inherent requirements of the position due to his physical incapacity to work in the cold, as per advice from the medical physician’s letter in February 2024.
The employee lodged an unfair dismissal claim arguing that the Employer did not have a valid reason to dismiss him, and that the termination was unfair because the physician’s medical advice did not conclude whether the employee had capacity to fulfil the inherent requirements of the job. The employee also argued that the Employer did not conduct the trial of 15-minute intervals as advised by his medical physician and should have done so prior to finding him incapable.
The Employer submitted that given the medical physician’s assessment that the employee could not work in cold environments for more than 15 minutes, and that the Employer believed it could not make accommodations for these conditions, the employee would be unable to fulfil the inherent requirements of the position.
The FWC disagreed with the Employer’s submissions, finding in favour of the employee’s view that there was no valid reason for dismissal, and it was harsh and unreasonable to terminate his employment.
The FWC stated that it was not for the Employer to make its own assumptions about the medical assessment or determine whether the employee was incapable of performing his duties. The FWC determined that the medical advice did not provide clear evidence of incapacity and although it stated that the employee would be ‘indefinitely’ susceptible to the cold, it did not provide a clear prognosis on which to determine incapacity.
Although the FWC affirmed that the Employer had reason to be cautious about the employee working in cold environments, the FWC maintained that the assumptions about incapacity drawn from the February 2024 letter did not provide a valid reason for dismissal and that the termination of employment on this assumption was inappropriate.
The FWC went further to say that the process undertaken by the Employer to gather medical evidence about the employee’s incapacity was harsh, unjust and unreasonable. The FWC commented that:
Therefore, the FWC upheld the unfair dismissal application, finding that there was no valid reason for dismissal and that the dismissal was harsh and unreasonable because the Employer made incorrect assumptions in regard to the employee’s capacity and did not at least attempt to follow treatment advice from the medical physician.
When managing ill or injured workers, employers should always ensure it has sufficiently detailed medical evidence, and legal advice, that allows it to make a carefully considered decision especially if terminating an employee's employment is a possible outcome.
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