Can employers fire long-term ill employees? - Labour Law Blog

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Mar 31, 2014

Can employers fire long-term ill employees?

The Fair Work Commission (FWC) has confirmed that employers may terminate employees who are unfit for work due to long-term illnesses or injuries – provided there is evidence that the employee is unable to perform their substantive duties and that they have been afforded procedural fairness.

In recent weeks the FWC has rejected two unfair dismissal claims, both of which related to applications made by long-serving train drivers who had their employment terminated while on extended medical leave.

The first case involved a Victorian train driver who, in almost 44 years with the same employer, had been involved in 20 reported train incidents including fatalities, collisions and near-misses. He was diagnosed with post-traumatic stress disorder (PTSD) and was absent from work for almost two years.

His employer found that the man was not only unfit to return to his job, but that he was also unfit for alternative duties such as office work. He was dismissed in December 2012.

The employee argued that both the dismissal decision and procedure was unfair, and gave evidence that his treating practitioner supported a structured return to work plan.

However, Fair Work Commissioner Nicolas Wilson ruled his dismissal as valid, commenting that the employee “did not have the capacity to perform the duties he was employed to do and that, on the objective facts known to (the employer), there was not a prospect of him being able to perform his duties again”.

In a similar case before the FWC, a Queensland train driver argued he was unfairly dismissed in May last year, following an absence of almost 18 months due to a series of seizures and related surgeries. The employee had worked for the company for 34 years and received more than $100,000 in termination entitlements.

Fair Work Commissioner Paula Spencer said that while the Commission is “sympathetic to the applicant’s position”, the medical evidence confirmed that he could not perform the inherit requirements of his role and therefore, found his dismissal was fair.

“An employer is not required to maintain an employee ‘on the books’ for an extended period of time, where the prospects of that employee ever being able to safely perform their substantive position again is minimal or would not be such, within a reasonable period of time,” she said. 

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