Dismissal for workplace injury, unfortunate but not unfair

A sizeable non-profit organisation has narrowly avoided disaster before the Fair Work Commission (FWC), after successfully arguing that its dismissal of an injured employee – actioned whilst her worker’s compensation claim remained in effect – due to her inability to resume her primary role, was not unfair.

The employer, which employs over 1300 employees, provides support services to elderly people, people with disabilities, children, and families, and had engaged the employee as a Child & Family Practitioner since mid-2020. The Practitioner was a passenger in a work vehicle when it was involved in a multi-vehicle accident in May 2022. The accident triggered mental health issues for the employee, who was subsequently diagnosed with Adjustment Disorder with Anxiety and Stress and PTSD. A worker’s compensation claim was initiated and remained active at the time of the employee’s dismissal in September 2023, with the Practitioner having “not been fully fit for her pre-injury duties since at least 26 September 2022”.

Prior to her dismissal, the Practitioner had attempted to return to her pre-injury duties in “good faith”, but her condition had not allowed this to happen. Commissioner Crawford of the FWC accepted the employee “had been increasingly struggling with the performance of her modified duties” in September 2023, despite initial medical advice anticipating she would be able to resume her substantive role by around May 2023. As her prognosis continued to be revised and it became increasingly unclear as to when, if ever, the Practitioner might be capable of resuming her pre-injury duties, the employer issued a notice to show cause to the employee on 20 September 2023. The Practitioner’s employment was terminated on 28 September 2023, several days after the employee had provided a response to the notice to show cause, assisted by the union.

In weighing the Practitioner’s application for unfair dismissal, Commissioner Crawford commented that he had “a substantial amount of sympathy” for the employee, adding she was “an extremely competent Child & Family Practitioner”, whom the employer acknowledged to be “a highly valued team member” who performed “extremely important work that provides a substantial benefit for the community”. The Commissioner further observed the Practitioner “feels aggrieved about how she was treated by [the employer]” and blamed the colleague who was driving the company vehicle “to some degree for the accident that triggered her illness”. The disquiet the Practitioner held towards her colleague, was compounded by the fact that the colleague had successfully resumed work after her own absence on worker’s compensation following the accident and been elevated into a leadership role above the Practitioner. It also became apparent to the Practitioner post-dismissal that the colleague “was writing extensive notes about [the Practitioner’s] behaviour at work” and that the observations had “contributed to the end of her employment”.

Commissioner Crawford expressed that there was “merit” to some of the Practitioner’s concerns and suggested the employer “could have done more to assist with [the Practitioner’s] recovery, including by allowing [her] to work away from [the colleague]”. Despite his sympathy for the employee, the Commissioner stated:

“However, my role in this case is not to make a wholistic assessment of [the employer’s] management of [the Practitioner’s] illness and return to work, or to determine whether [the employer] has complied with workplace safety laws. My role is limited to considering whether [the Practitioner] has been unfairly dismissed taking into account the factors in s.387 of the FW Act.”

Turning to consider whether the employer had a valid reason for dismissal, Commissioner Crawford acknowledged at the time of termination the Practitioner had been struggling to perform “less demanding modified duties”, conceding the employer “could not have been confident in September 2023 that [the Practitioner] would be able to return to her pre-injury duties in the short or medium term”. The Practitioner’s “substantive role involves providing direct support to vulnerable clients, it is a very demanding role that would be extremely difficult to perform for a person struggling with their own mental health”, he added. Commissioner Crawford determined the Practitioner “had a continuing incapacity for work, and she was unable to perform the inherent requirements of her position”, providing a valid reason for dismissal.

The Commissioner found the Practitioner’s dismissal was neither unjust nor unreasonable, “given [the Practitioner] had been unable to perform her pre-injury duties for a lengthy period and it was not clear that she would be able to return to her pre-injury duties in the short to medium term”. However, he assessed it was “arguable” her dismissal was harsh, identifying he was “close to arriving at that conclusion”, but the Commissioner noted that not all of the Practitioner’s criticisms of her employer (or the colleague) were “warranted”. Ultimately, Commissioner Crawford concluded the dismissal was not harsh, commenting:

“I accept the continuing provision of modified duties to [the Practitioner] was causing some operational issues for [the employer], and it was far from certain that [she] would be able to return to pre-injury duties in the near future. The evidence suggests [the employer] did genuinely explore redeployment options and determined nothing suitable could be accommodated. I am also mindful that [the Practitioner] has ongoing workers’ compensation entitlements that will provide her with a degree of financial relief.”

Assessing the Practitioner’s dismissal constituted “unfortunate circumstances” but was not unfair, Commissioner Crawford dismissed the application.

Kelso v The Benevolent Society [2024] FWC 1283 (16 May 2024)

NOTE:  

Whilst the employer had rare success in this instance, it is important to recognise that the outcome could have been substantially different if the employee, who was unrepresented during the Hearing, had pursued a general protections dismissal claim (instead of unfair), and potentially argued she had suffered adverse action as a result of her successful worker’s compensation claim, for example. Although not an impossible task, it is vital to acknowledge that there is never a risk-free path to terminating the employment of an ill or injured worker.