A decision by the Fair Work Commission delivered in July has reinforced that employers need to ensure they have made full enquiry, have all relevant facts and treat employees with compassion and fairness before determining to terminate employment on the grounds of failure to meet the inherent requirements of their role.
Ms Bennett was a 56-year-old woman whose career had been working as a cleaner in a small regional town for over 28 years, and had been employed on a permanent part-time basis by the respondent employer for about 5 ½ years. In 2014, Ms Bennett was absent from work on unpaid sick leave for a period of about 2 ½ months, while she underwent surgery and recuperated from an operation to remove growths, known as spurs, from her right ankle. In August 2016, she needed further surgery to remove similar spurs from her left ankle. This required a longer period of absence from work on unpaid sick leave of around 4 months, during which time Ms Bennett provided her employers with on-going medical certificates from her treating doctor certifying that she was unfit for work.
In December, the employer sent her paperwork requiring a functional capacity assessment to be undertaken by her doctor. The report prepared by the doctor assessed her as being not fit to return to her pre-injury duties, but foreshadowed a further review in mid-February the next year. Days before the February assessment was undertaken, the company’s injury department manager telephoned Ms Bennett and enquired about her medical condition and the reasons for her extended absence from work. During the course of this discussion injury department manager formed the view that Ms Bennett was no longer capable of meeting the inherent requirements of the role and proceeded to give her notice of the termination of her employment verbally over the phone.
Three days later Ms Bennett attended the scheduled February medical appointment and was certified as fit to resume her normal duties the following week. Ms Bennett then filed an unfair dismissal application seeking reinstatement pursuant to section 394 of the Fair Work Act 2009 (Cth) (“the Act”). On hearing before Commissioner Cambridge, the issue was whether the dismissal was “harsh, unjust or unreasonable”, and hence unlawful, under the terms of section 385 of the Act.
In reaching his conclusion that the decision to dismiss the employee was harsh, unjust and unreasonable, Commissioner Cambridge found that the employer’s conduct and decision was –
“erroneous, capricious, unsound, unfounded, fanciful, ill-considered, illogical, intemperate and devoid of compassion”.
Commissioner Cambridge further found that the decision on the part of the manager that Ms Bennet would not be able to meet the inherent requirements of the role was made in the absence of any valid medical opinion, was “hasty, erroneous and capricious” in that the employers could not point to any reason as to why the decision could not have been delayed until following the next medical assessment three days later.
The Commissioner also remarked that the decision to question the applicant over the phone about her condition lacked procedural fairness, denying her a fair opportunity to respond to the issues raised, and the decision to terminate, without pausing for proper reflection, was entirely inappropriate and had been carried out with “the perfunctory dispassion of tossing out a dirty rag”.
The Commissioner, accordingly, ordered that the applicant’s employment be reinstated, that the employer pay her lost income as well as her legal costs. In concluding, the Commissioner remarked that it is cases like these that illustrate the rights of employees to be treated with “basic human dignity” and that the manifest injustice with which Ms Bennett was treated “provide strong foundation for argument against any lessening of legislative protections for unfair dismissal, a proposition which seems to regularly resurface, and gain a level of publicity that is disconnected with reality”.