The Fair Work Commission (FWC) has recently considered whether a dismissal for incapacity was harsh, unjust or unreasonable, in circumstances where the employee was unable to return safely to her substantive position and had declined to accept alternative employment due to her personal circumstances.
Elaina Tito v Pilbara Iron Company (Services) Pty Limited  FWC 7469
Ms Elaina Tito (Ms Tito) had been employed as a plant operator, driving haul trucks for Pilbara Iron Company (Services) Pty Ltd (Rio), since September 2011.
While operating a truck in September 2013, Ms Tito suffered a neck injury but later fully recovered and commenced driving again in January 2014.
In July 2016 she sustained a similar injury that required surgery. Ms Tito returned to work after surgery, but only for 90 minutes due to discomfort.
From July 2016 until May 2018, Ms Tito participated in three return to work programs, during which she predominately performed administrative duties.
During this period, Ms Tito was assessed by numerous medical specialists and general practitioners. Having considered the medical assessments, advice, and recommendations of these specialists and practitioners, Rio concluded that due to the risk of re-aggravation of her injury, it could not return Ms Tito to her substantive position.
On 10 May 2018, Rio commenced a redeployment process to place Ms Tito in an alternative position within its business. A suitable position was found and on 14 August 2018 offered to Ms Tito, however she declined because the roster conflicted with her parental responsibilities. Evidence was given that Ms Tito’s ex-husband, who also worked for Rio, would be working on the same shift and there would be no one available to care for her children.
As no other suitable position was available, Rio dismissed Ms Tito on medical grounds.
Deputy President Beaumont considered whether there was a valid reason for dismissal, specifically, whether Ms Tito was unable to fulfil the inherent requirements of her role. The FWC has previously stated that it is the substantive position of the employee that is to be considered, not some other modified, restricted duties or a temporary alternative position.
Ms Tito’s substantive role was to operate or drive mobile plant, predominantly haul trucks, in accordance with the period stipulated by Rio. Ms Tito’s roster required her to work 12.5 hour shifts.
Ms Tito relied heavily on the specialist’s reports which opined it was “not unreasonable” to progress her to a return to haul truck driving (although it was the specialist’s opinion that the chance of success with such a plan was low and that it would be more effective for her to be redeployed).
On the other hand, Ms Tito’s general practitioner had on three occasions certified that she had “some capacity to work”, however stated that “4 specialists have reported that they do not recommend return to work”, and “there will be consequences if this patient is damaged”.
Whilst Ms Tito submitted that the FWC should prefer the reports of the medical specialist to that of her general practitioner, Deputy President Beaumont found commonality between both. The medical evidence showed that Ms Tito was not fit to perform the inherent requirements of her position, and no evidence demonstrated that reasonable adjustments would have made a difference.
Deputy President Beaumont said that Rio was obliged to put the health and well-being of Ms Tito first and that it would have been “ill-conceived” to put Ms Tito “in a position where a medical specialist had made it abundantly clear that his opinion was that her chances of success” in returning to work was low and “he doubted that she would cope”.
Based on the medical evidence, Deputy President Beaumont held that Rio came to a sound conclusion that Ms Tito could not return safely to her pre-injury duties and would not be capable of doing so for the foreseeable future.
Deputy President Beaumont also found that Rio had followed its injury management policy and that it was evident that it had “diligently sought to place her in an alternative position”.
Whilst it was “entirely regrettable” that Ms Tito’s personal circumstances prevented her from accepting the alternative position, Deputy President Beaumont said this did not render her dismissal unfair.
Taking into account each of the matters specified in s 387 of the Fair Work Act 2009 (Cth), Deputy President Beaumont was satisfied that Rio had a valid reason for dismissing Ms Tito.
Lessons for Employers
Employers should ensure that employees who are unfit for work for lengthy periods of time are given an opportunity to return to work, including:
- by preparing a return to work plan based on medical evidence
- making reasonable adjustments to enable the substantive position to be performed (where recommended)
- assessing the employee’s capacity to return to the pre-injury position
- considering redeployment (if feasible) where an injured employee is unable to return to the pre-injury position
However, where it is apparent from the medical evidence obtained that an employee is unlikely to be able to fulfil the inherent requirements of the substantive position for the foreseeable future, then an employer can dismiss an employee for incapacity (subject to the employer’s obligations under the relevant workers’ compensation legislation).
If you would like advice or assistance with any of the above issues, please contact a member of our Workplace Relations team.
 J Boag and Son Brewing Pty Ltd v Button (2010) 195 IR 292, .