FWC accepts termination of employee based on fitness for work capacity

FWC accepts termination of employee based on fitness for work capacity

FWC accepts termination of employee based on fitness for work capacity

The Fair Work Commission has rejected an unfair dismissal claim from a terminated employee who was assessed as medically unable to fulfil his role and dismissed the employee’s claim that he should have been allowed further time to recover before being terminated in the hope of being able to return to work.

‘KA’ was employed as a bus driver by Kinetic (Melbourne) Pty Ltd, which operates a Melbourne bus service from February 2022 until February 2023. Prior to his employment with Kinetic, KA worked for the previous operator of the service, with a combined service totalling nine years.

In 2016 he was injured at work when he was attacked by a group of youths and sustained a neck injury. The strain of the episode also led to him being diagnosed with post-traumatic stress disorder (PTSD). With support from his family, he was able to return to work.

Unfortunately, in 2017 he was again assaulted at work when a passenger spat at him. His mental health deteriorated, and he was prescribed medication for anxiety. He took further time off work but later returned to his normal driving duties.

In September or October 2022, he claimed to be suffering again from stress and asked to take time off work, but the request was refused.

On 18 November 2022, while feeling stressed, he took the wrong bus from the depot and also followed the wrong route. He lost concentration, and his neck again started to hurt. He pulled over and contacted the operations centre to advise of the situation, and unsurprisingly felt anxious and stressed.

He ultimately returned to the depot, sought medical attention and, on the advice of his doctor, took time off. As it transpired, he did not return to work at any time prior to his dismissal. He did provide medical certificates to cover his absences.

Kinetic claimed that they had strong concerns about his capacity for work and that this was the reason it was sending him for an independent medical examination. On the basis that the report determined he was physically unable to complete his duties, he was terminated in February 2023.

As noted by Deputy President Alan Colman,

“The clinical opinion of Dr Altaf was very clear and aligned with that of Dr Kumarasinghe. Mr (A) had no capacity for work … In any event, there was no medical evidence before the company on 10 February 2023 that gave any indication that Mr (A) would have an imminent capacity for work”.

The Deputy President also rejected submissions from Mr A that he should be allowed further time to recover and, consequently, that his dismissal was unfair, noting,

“Although Mr (A) told Mr Singh that he was feeling better, this did not provide a logical basis to conclude that he might soon be fit for work”.

The Deputy President concluded,

“I do not consider that the company ought reasonably to have afforded Mr (A) further time to recover … He had been absent from work for several months. He had exhausted his accrued sick leave. There was no reasonable basis to expect an imminent improvement in his condition. In my view, the company had been patient with Mr (A). It had already afforded him a reasonable time to recover”.

Deputy President Colman dismissed the application.

KA v Kinetic (Melbourne) Pty Ltd (U2023/1710) 11 May 2023

For queries about injured employees, incapacity to work, independent medical examinations,  or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

Ref: 351.0723

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