By Nikita Barsby, Special Counsel and Miette Xamon, Law Clerk
Commission Satisfied Employer Acted In Good Faith
The unfair dismissal application of a pharmaceutical store-person who suffered from debilitating depression and PTSD has been dismissed after the Fair Work Commission found that she was unable to perform the inherent duties of her role.
In Jack v Sigma Healthcare  FWC 6364 the Commission acknowledged the lengthy period for which the employer kept the employee’s position open while she was ill/injured, and the procedurally fair process it conducted in terminating her employment.
The employee, Ms Jack, was injured in a non-work related car accident and was away from work from October 2017 until her dismissal in January 2019.
Following the accident Sigma’s HR representative engaged with Ms Jack and her medical providers regarding Ms Jack’s capacity to return to work, and reasonable adjustments that could be made to her position to accommodate her illness/injury. Sigma also sought advice from Ms Jack’s medical providers as to when it was likely Ms Jack would be fit to resume her pre-injury duties.
In December 2018, Ms Jack’s treating Doctor advised Sigma that Ms Jack was currently unable to perform any duties. Sigma subsequently wrote to Ms Jack in January 2019 advising, in unequivocal terms, that it was seriously considering terminating her employment on the basis of her inability to perform the inherent requirements of her position. Sigma invited Ms Jack to arrange a meeting with its HR Manager to provide further information, including medical information, before it determined whether it would terminate her employment. Ms Jack did so, but was unable to provide Sigma with any indication as to when she would become fit for work. Sigma subsequently terminated Ms Jack’s employment.
In concluding that Sigma had a valid reason to dismiss Ms Jack, Commissioner Cirkovic concluded that, based on the medical evidence available to Sigma at the time of the dismissal, although Ms Jack’s physical capacity was improving, the evidence of her mental state indicated that a return to work was not foreseeable.
The Commissioner noted that Ms jack’s incapacity to perform the inherent requirements of her role was “longstanding, being well over 12months; and ought to be viewed in light of the absence of medical evidence indicating a foreseeable return to work.” The Commissioner was satisfied that although Sigma had considered modification of Ms Jack’s duties to accommodate the restrictions on her physical capacity, it could not modify its “high paced” workplace which required “high levels of concentration and awareness” to accommodate Ms Jack’s mental incapacity.
The Commission was satisfied that Sigma had followed a procedurally fair process – including having notified Ms Jack of the reason for her proposed dismissal and affording her an opportunity to respond.
The Commission was sympathetic to Ms Jack’s situation and accepted that a relevant consideration was the community interest in assisting the rehabilitation and return to work of seriously injured or ill individuals. However, it concluded that this must be balanced with the actions of Sigma, which kept Ms Jack’s position open for a lengthy period and conducted a procedurally fair process.
Ultimately, the Commission concluded that Ms Jack’s dismissal was not unfair and dismissed her application.
Managing ill and injured workers requires a careful approach, tailored to the specific circumstances. For more information on managing employees experience mental illness, see our recent article.
For advice on any employment law issue, including how to manage an employee’s return to work, or directing an employee to attend an independent medical assessment, contact MDC Legal.