The Fair Work Commission (FWC) recently considered whether a dismissal for incapacity was “harsh, unjust or unreasonable” in the following decisions.
Vijayan Kothandan v Transdev Melbourne Pty Ltd T/A Transdev  FWC 2119
Mr Vijayan Kothandan (Mr K) was employed as a bus driver by Transdev Melbourne Pty Ltd (Transdev) from 12 January 2015 until his dismissal on 13 November 2017.
Mr K began to experience nerve pain while driving in July 2016 and worked intermittently on modified duties. During this period Mr K also begun to suffer from anxiety and depression and, following an incident on 28 March 2017, Mr K ceased being able to work altogether.
Over a period of 16 months, Transdev attempted to involve Mr K in return to work plans. However, this process was unsuccessful due to Mr K’s lack of attendance and compliance, mostly as a result of Mr K’s anxiety attacks.
On 13 November 2017, Mr K was dismissed on the basis that his restricted medical capacity prevented him from safely performing the inherent requirements of his position.
Mr K applied to the FWC for an order for unfair dismissal and argued that Transdev had not provided him with appropriate treatment to recover or support his rehabilitation and failed to provide a safe working environment.
Commissioner McKinnon considered whether there was a valid reason for dismissal, specifically, whether Mr K was unable to fulfil the inherent requirements of his 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.1
Mr K’s substantive role was bus driver, which required him to drive a bus on public roads, transporting passengers safely across pre-determined bus routes.
Commissioner McKinnon found that the medical evidence established that Mr K’s ongoing anxiety affected his judgement and he was not capable of regularly and safely performing his role as a bus driver. Although Transdev had relied on medical reports from a few months prior to the dismissal date when making the decision to terminate Mr K’s employment, the Commissioner was satisfied that additional time and medical evidence would not have changed the outcome.
Commissioner McKinnon also considered whether Mr K was notified of the reason for dismissal and whether he was given the opportunity to respond. The evidence was that four weeks prior to his dismissal, Mr K was given an opportunity to obtain further medical evidence from his treating medical practitioners and was provided with a letter to give to his doctors setting out the information required. However, Mr K did not produce any further reports prior to his dismissal.
Accordingly, the Commissioner found Mr K was notified of the reason for his dismissal and afforded a reasonable period of time to obtain further medical evidence.
Commissioner McKinnon held that there was a valid reason for dismissal. Mr K did not have the capacity to work as a bus driver at the time that he was dismissed and Transdev was not obliged to maintain Mr K’s employment indefinitely in circumstances where he could no longer do the job he was employed to do.
1. J Boag and Son Brewing Pty Ltd v Button  FWAFB 4022.
Richard Hyde v Serco Australia Pty Limited  FWC 2465
Mr H was employed by Serco commencing in 2009 as a custodial officer.
He suffered a left knee injury at work in May 2015 and resumed full duties three months later.
At the time it was discovered he had osteoarthritis in his right ankle.
In May 2016 he requested and was put on light duties pending an ankle fusion operation in June.
He returned to work on light duties in August 2016.
In November 2016, his surgeon was asked specific questions about Mr H’s capacity to respond to emergencies, however the surgeon simply wrote that he was fit to resume full duties. Serco was concerned that the specific questions had not been answered so Mr H remained on light duties.
In February 2017, when completing a required “Physical Readiness Form”, Mr H admitted he could not run a certain specified minimum distance. Serco therefore sought a further report from Mr H’s GP. The GP said he was fully fit.
Serco advised Mr H it wanted an independent medical assessment.
Serco agreed with Mr H that it would accept a further report from his surgeon and Serco provided the surgeon with specific questions it needed answered.
In May 2017, the surgeon’s report said Mr H was not and never would be able to resume full duties at 100% level and would need a supernumerary to be available in the event of emergency.
In June 2017, Serco gave Mr H a show cause letter as to why he should not be terminated.
The union sought, and Serco agreed, to Mr H getting a second opinion.
The union responded to the show cause letter on 30 June, but did not proceed with a second opinion.
The final termination meeting was held on 11 September and Mr H was paid five weeks pay in lieu of notice.
At the hearing on 30 January 2018, Mr H presented a report and verbal evidence from an occupational physician that said Mr H could perform all pre-injury duties.
Commissioner Williams examined a recent full bench decision (CSL limited v Papaioannou  FWCFB 1005) and confirmed that that decision meant the question of a valid reason for termination is to be based on the medical evidence available to the employer at the time of dismissal.
Subsequent medical evidence produced after the termination may be relevant to the question of remedy, but that only occurs after FWC has decided whether the dismissal was fair or unfair.
Serco was entitled to rely on the surgeon’s May 2017 report, particularly as Mr H had been given an opportunity at the time to seek another medical opinion and he chose not to do so.
Reminder for employers
Employers need to be aware of their return to work (RTW) obligations under the relevant State workers’ compensation legislation. Particularly, employers need to be aware of when they can or cannot dismiss an injured employee.
Each State in Australia has its own laws.
In Victoria, an employer has an obligation, to the extent that it is reasonable to do so, to provide an injured employee with suitable employment if they have an incapacity for work, for a 52 week period.2 Following that period, an employer may terminate an injured employee’s employment if the employee cannot adequately perform the genuine and reasonable requirements (even after adjustments are made) of his or her pre-injury role. Note that unfair dismissal and general protections considerations still apply.
On the other hand, in NSW an employer cannot legally dismiss an employee for a period of six months (or the length of any accident pay in the employee’s award or agreement) after the employee becomes unfit for employment due to a work related injury.
If an employer dismisses an employee because of a work related injury at any stage in the claim, the employee may apply to the employer to be reinstated. If the employer then replaces the employee within two years of dismissing them, the employer must inform the replacement employee that the dismissed employee may be entitled to be reinstated to the role.3
2 Workplace Injury Rehabilitation and Compensation Act 2013 (VIC), s 103.
3 Workers Compensation Act 1987 (NSW), ss 241(1), 247 and 248.