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What you must ask before dismissing a worker for incapacity

By Charles Power on July 12th, 2017

If a dismissal for incapacity amounts to disability discrimination, it is also likely to be unfair dismissal. This was certainly the case in Maharaj v Northern Health (2017).

A nurse suffered a car accident and was unfit for work for nearly 16 months when her employer terminated her employment for incapacity. The dismissal letter stated that the employee had “significant restrictions” on her ability to perform her pre-injury job or that she was likely to have “incapacity into the foreseeable future”.

But the Fair Work Commission (FWC) ruled that the employer did not have sufficient basis to reach this conclusion. In particular, it failed make inquiries about the employee’s work capacity, despite being aware of the possibility that the employee did have some capacity and wanted to discuss a return to work plan.

The employer relied on a Transport Accident Commission (TAC) Certificate of Capacity that confirmed the worker had no capacity for employment. In the absence of any information to the contrary, the employer claimed it was entitled to conclude the worker was unfit to return to her pre-injury job. The inability of the worker to perform the inherent requirement of their job is a valid reason for dismissal.

However, the FWC ruled that the employee could have returned to her pre-injury duties on a graduated return to work program, building up, over time, to her normal hours of duty. But the employer chose not to explore in any substantive way if the employee could return to work, when that might occur and on what conditions.

Disability Discrimination Act

The employer also breached the Disability Discrimination Act by not making any inquiries as to whether or not the employee could perform the inherent requirements of the position with reasonable adjustments. Given the reason for dismissal was unlawful, it could not be a valid reason.

The employer should have given the employee an opportunity to put anything to it prior to making the decision to dismiss, and send the letter terminating her employment. Failure to do this was another reason for the FWC determining the dismissal was unfair.

Having found the dismissal unfair, the FWC ordered that the employee be reinstated.

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