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Employers may face difficult circumstances if they have an ill or injured employee who is no longer able to perform the essential requirements of their role. In recent years the Fair Work Commission has provided guidance on this issue and has generally held that where an employee is unable to perform the core requirements of their role, dismissal may not be unfair or unlawful.
In the recent matter of Dennis Sipple v Coal & Allied Mining Services Pty Ltd (2015), the Commission held that the employee’s dismissal was not unfair because, amongst other things, he could not perform the fundamental requirements of his role as a result of suffering a personal injury.
Mr Sipple was employed as a pit service operator which inherently required the applicant to be a “multi-skilled operator” and capable of operating a range of heavy machinery and equipment. While working, the employee suffered a non-work related personal injury which prevented him from sitting in one position for an extended period of time. Over the course of several years, the parties were engaged in a lengthy process in which modified duties and various return to work plans were implemented.
Additionally, independent medical assessments were undertaken by the employee in order to assess his fitness for the role. This assessment indicated that the Mr Sipple did not have the capacity to perform his pre-injury duties as a pit services operator and that there was no prospect of him being able to perform those duties in the future. The employer also evaluated whether there were other roles which might be appropriate for Mr Sipple but concluded that there were none that would be suitable for him to perform.
The employer took various factors into account, including the independent medical assessment report, and concluded that dismissal was appropriate. In light of the employee’s position, the inherent requirements of that position, and the prevailing medical evidence, the Commission agreed that there was a valid reason for dismissal.
Employers must keep in mind that even where an employee can no longer perform the requirements associated with their role, there are many procedural and evidential requirements which must be met. A proper process is critical to ensure that employees are offered procedural fairness, minimising the potential for a claim to arise. Employsure can assist employers to navigate the process of capabilities dismissals. Please call Employsure today on 1300 651 415 for more guidance on this process or if you have any queries relating to illness or injuries of your employees.
Source: Catilin Lane – Employsure Claims Adviser