By Gaby Grammeno Contributor

The worker was a Child and Family Practitioner employed by a provider of support services to elderly people, families, children, and people with disabilities. She was regarded as extremely competent, a highly valued team member often assigned complex and high-risk clients.

On 6 May 2022, while returning from a work conference, the car in which she was a passenger was involved in a multi-vehicle car crash on the New England Highway.  The experience triggered a psychological condition diagnosed as ‘Adjustment Disorder with Anxiety and Stress and PTSD’.

As a result, she struggled to cope with her role, and even with the less demanding modified duties she was assigned to help her recover. Since at least 26 September 2022 she had not been fully fit for her pre-injury duties. By late September the following year, her employer had lost any expectation that she would regain her capacity to perform the inherent requirements of her position and terminated her employment.

She felt aggrieved about how she was treated by her employer, and particularly, by the colleague who’d been driving the employer’s car when it was involved in the crash, whom she blamed to some degree for what happened. She filed an unfair dismissal application with the Fair Work Commission on 19 October 2023.

IN THE COMMISSION

Commissioner Stephen Crawford wrote in his decision that he had a substantial amount of sympathy for the worker. He said the work she performed would undoubtedly be challenging and difficult.

‘It is extremely important work that provides a substantial benefit for the community,’ he said.

He believed there was merit to some of the worker’s complaints.

‘It is regrettable that [the employer] did not do more to ensure [the worker’s] workers’ compensation claim was submitted earlier. I also consider [the employer] could have done more to assist with [the worker’s] recovery, including by allowing her to work away from [the colleague she’d complained of].’

He noted that it was also unfortunate that some of her colleagues were apparently not prepared to enter a vehicle driven by the worker, even when she had been medically cleared to drive.

That said, Commissioner Crawford acknowledged that his role in the case was not to make a holistic assessment of the employer’s management of her illness and return to work, or to determine whether the company had complied with workplace safety laws. His role was limited to considering whether the worker had been unfairly dismissed, taking into account the factors in s.387 of the Fair Work Act 2009.

Commissioner Crawford accepted that in September 2023, the employer would not have been confident that the worker would be able to return to her pre-injury duties in the short or medium term. Her substantive role involved 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 said.

Commissioner Crawford was satisfied the employer had established that when the worker was dismissed, she had a continuing incapacity for work, and was unable to perform the inherent requirements of her position.

He found that there was a valid reason for her dismissal related to her capacity, and weighing all relevant matters, the worker’s dismissal was not harsh.

In conclusion, he was not satisfied that the worker was unfairly dismissed within the meaning of s.385 of the FW Act, and her application was dismissed.

WHAT IT MEANS FOR EMPLOYERS

If there are reasonable grounds to believe that a worker has a continuing incapacity for work and is unable to perform the inherent requirements of their position, termination of their employment may be valid and not unfair.

READ THE DECISION

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