Questions of capacity: FWC endorsed employer’s approach to management of injured employee

The Fair Work Commission (FWC) has endorsed the approach of a HR team in their management of an injured worker and the subsequent termination of her employment resulting from her incapacity to perform the inherent requirements of her role (Jack v Sigma Healthcare T/A Sigma Healthcare [2019] FWC 6364).

The employee was a storeperson working in a pharmaceuticals warehouse. In October 2017, she was injured in a non-work-related car accident and was totally unfit to work for six months.

In July 2018, the employee’s osteopath certified her with capacity for “suitable employment”.

After receiving this certificate of capacity, the employer arranged a meeting with the employee to discuss her return to work. It became apparent as a result of that meeting that the medication the employee was taking at the time would have made it unsafe for her to return to her role in the warehouse. Following the meeting, the employee intended to speak to her doctor about changing her medication.

In September 2018, the employer wrote to the employee’s treating doctor to enquire directly about the employee’s health, her future prognosis and her capacity to perform the tasks she would normally be required to undertake in her role. The employer did not receive a response.

The employer continued to receive certificates of capacity from the employee’s osteopath stating that she had capacity for “suitable employment.”

In November 2018, the employer wrote directly to the employee in relation to her capacity for work and requested an approximate date for resumption of her pre-injury duties based on medical evidence. The employer also wrote again to the employee’s treating doctor.

The employee provided yet a further certificate of capacity from her osteopath stating she had capacity for “suitable employment.”

In December 2018, the employee’s treating doctor replied to the employer and stated that “She can not perform any duties at that stage” (sic).

In January 2019, the employer wrote to the employee advising that it was seriously considering terminating her employment on the basis of her inability to perform the inherent requirements of her position, and a telephone conference was scheduled to discuss the matter.

Prior to the meeting, the employee provided her employer with a certificate of capacity from her psychiatrist stating that she had no capacity to return to work for the month ahead.

The employee also provided the employer with a further letter from her treating doctor which stated that her psychiatrist recommended visits fortnightly for 2 to 3 months with a view to “reassess after that.”

The employee participated in a telephone conference with representatives of her employer, during which she stated that she was struggling with anxiety, didn’t know if she could cope around lots of people at work and felt on edge and under scrutiny. The employee also agreed with her treating doctor’s assessment that she could not perform any duties at the time.

Two days later, the employee participated in a further telephone conference with representatives of the employer during which she was advised that her employer could no longer keep her job open for her. That day, the employee was issued with a letter confirming the termination of her employment on the grounds of her inability to perform the inherent requirements of her role and that there were no suitable positions available for her within the business.

Following the termination of her employment, the employee lodged an unfair dismissal claim, alleging that:

  • There was no valid reason for her dismissal because there was nothing in the medical evidence which definitively stated that she could not perform the inherent requirements of her role or would not be able to at some point in the future;
  • It was premature for the employer to assume that she would not recover and there was no evidence of an intractable condition; and
  • She was not given a fair go. 

The employer submitted that the medical evidence at the time of the dismissal supported the position that the employee was not able to perform the inherent requirements of her role. Further, the reports from her doctors did not give any clear indication of when the employee would be able to return. Instead, they stated that future reviews would be required and it could not be known whether those reviews would result in a change to the employee’s capacity.


The FWC considered the matter and found that, based on the medical evidence available to the employer at the time, there was a valid reason for the employee’s dismissal.


The FWC noted that the evidence before it showed that the employee’s incapacity was longstanding and should be viewed in the context of an absence of medical evidence indicating a foreseeable return to work.


The FWC was further satisfied that there were no adjustments the employer could make to the high-paced working environment (which required high levels of concentration and awareness) that would accommodate the employee’s mental incapacity.


On the question of whether the employee was afforded a fair go, the FWC commented that the employer had kept the employee’s role open for a lengthy period of over 12 months and had acted with good faith throughout the process, including through its ongoing communications with the employee and her doctors.


Ultimately, the FWC dismissed the employee’s application on the basis that there was nothing substantively or procedurally unfair about her dismissal.


Lessons for employers


There is no denying that the return to work process following a serious injury can be extremely challenging for both employers and employees, particularly where questions of fluctuating capacity are involved.


As endorsed by the FWC in this case, employers should approach the process with patience and diligence, ensuring that they have all the required information regarding an employee’s capacity before making any decisions about their ongoing employment.


In particular, employers should ensure that they have up to date medical evidence from experts and should communicate directly with the employee (where possible) to ensure that all relevant matters are considered.


Once all the relevant information has been gathered, employers must consider whether the evidence supports a return to work in the foreseeable future and whether there are any reasonable accommodations that could be made to enable the employee to perform their role.


Only after all of these matters have been considered should an employer make a definite decision about an employee’s ability to perform the inherent requirements of their role and their ongoing employment.

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.

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