FWC endorses termination of injured Store Manager despite procedural deficiencies

The Fair Work Commission has upheld the pre-Christmas dismissal of a Store Manager who suffered debilitating injuries in a serious car accident in early-2023, overlooking procedural flaws to find there was no reasonable prospect of the employee successfully resuming his full-time role in the foreseeable future. 

The employee commenced with the northern-NSW furniture store in late-2020 and had been promoted to the full-time Store Manager role by August 2022. In May 2023, he was involved in a car accident that was so serious, he was told he was lucky to survive. The Store Manager was left with injuries to his wrist and leg, as well as a traumatic brain injury, and was completely incapacitated for work for the next four months. He commenced a gradual return to work on two days per week at 5.5 hours per day in early-September and, after some initial setbacks in which his doctor conveyed the employee was finding the return to duty “overwhelming” and was contributing to “worsening anxiety and deterioration in his mental health”, he was able to increase his hours (in a non-managerial role) in mid-October and again in mid-November.

When the employer flagged concerns regarding the store’s declining sales figures over the previous six months to December 2023, the employee deteriorated and submitted updated medical advice indicating he needed to again reduce his availability to two days per week of 5.5 hours per day from 13 December. In response, the employer assessed a full-time manager was essential to improve the store’s performance and determined to conclude the Store Manager’s full-time engagement and offer redeployment to a part-time salesperson role. Deputy President Saunders summarised:

“Due to the financial downturn of [the store], the negative effects of not having a full-time manager in the store since 7 May 2023, [the employee] reducing his return to work hours with no clear explanation for this change, together with consideration of [the employee’s] general practitioner’s advice concerning his mental state to remain in the role, [the employer] made a decision to remove [the employee] from his role as Store Manager of [the store].”

Before the employer’s Retail Operations Manager could meet with the employee to discuss the employer’s decision and offer redeployment to the salesperson role, the Store Manager sent an email on 17 December 2023 purporting to provide additional detail as to why his hours needed to (again) reduce. He cited feeling “unappreciated and unsupported” and noted that working four days per week whilst also attending to his rehabilitation on non-working days was “unsustainable”. The Store Manager was subsequently invited to a meeting with the Retail Operations Manager on 20 December, where he was presented a letter of dismissal (dated 14 December) titled, “notice to dismiss due to physical incapacity” which explained why his employment could not be continued. The Store Manager was also invited to consider the part-time salesperson position, which he declined by email the following day.

On considering the evidence, Deputy President Saunders was satisfied the Store Manager “was not capable of performing the inherent requirements of his role…at the time his employment was terminated”. The Deputy President also acknowledged it was “more likely than not that [the employee] would not have been able to perform the inherent requirements of his role as a Store Manager for a considerable period after 21 December 2023”. Deputy President Saunders rejected the employee’s suggestion that he could have been permitted to work his full-time hours partly from home, confirming this would not have constituted a reasonable adjustment, nor was he cleared to perform anything more than 11 hours per week, in any capacity, at the time of his dismissal.

It was not in dispute that the employer failed to provide clear information to the Store Manager regarding the purpose of the meeting on 20 December 2023 (which ended up being his termination meeting), meaning he had no opportunity to arrange or request a support person. In addition, it was accepted that the employer failed to afford the employee an opportunity to comment on, or provide information in relation to, his removal from the position of Store Manager on the basis of his inability to perform the inherent requirements of his role prior to a final decision being made. Whilst these procedural deficiencies weigh in favour of a finding that the termination was harsh, on balance, Deputy President Sauders concluded the dismissal was not unfair, observing:

“[The employee] was absent from work for a significant period of time. It is clear from the medical evidence from [the employee’s] treating doctor that he did not have the capacity to do his job at the time he was dismissed, and it was unlikely that [the employee] would be able to return to his full-time role in the foreseeable future. There were no reasonable adjustments which could have been made to [the employee’s] role to accommodate any current or future incapacity.”

Deputy President Saunders dismissed the Store Manager’s application.

T. v Oz Design Furniture Ballina Pty Ltd [2024] FWC 880 (5 April 2024)