Employer sacks manager after out-of-work injury: Was it unfair dismissal?

The Fair Work Commission (FWC) recently dealt with a case involving the dismissal of a worker from his position as a store manager due to his physical incapacity following a serious motor vehicle accident.

The decision highlighted the interplay between an employee's capacity to perform their duties and an employer's right to terminate employment.

The FWC had to determine whether the dismissal was harsh, unjust, or unreasonable under the Fair Work Act 2009.

The worker's accident and absence

On May 7, 2023, the worker was involved in a severe motor vehicle accident unrelated to his employment as the store manager of the employer. As a result of the crash, the worker sustained significant injuries, including a broken wrist, a fractured tibia, and a brain injury.

He was absent from work for about four months, from May 7, 2023, to September 2, 2023.

Upon his return to work on September 2, 2023, the worker started working two days per week, 5.5 hours each day. Over the following months, his general practitioner gradually increased his working hours, reaching 22 hours per week by November 15, 2023.

However, on December 13, 2023, the worker provided a new medical certificate reducing his capacity for work back to two days per week, 5.5 hours each day, due to concerns related to his traumatic brain injury and the need to reduce cognitive load to aid his recovery.

Employer's decision to dismiss

Due to the worker's reduced capacity, the negative impact on the store's performance without a full-time manager, and the worker's general practitioner's advice concerning his mental state, the employer decided to remove the worker from his role as store manager.

On December 20, 2023, the worker was informed of his dismissal and offered the opportunity to continue working in a part-time sales role, which he rejected.

The FWC found that the worker was dismissed within the meaning of s 386(1)(a) of the Fair Work Act 2009, as the termination of his employment was on the employer's initiative and not agreed to by the worker.

In considering whether the dismissal was harsh, unjust, or unreasonable, the FWC assessed various factors, including the worker's capacity to perform the inherent requirements of his role at the time of dismissal and in the future.

The FWC said that based on the medical evidence available at the time of dismissal, the FWC was satisfied that the worker was not capable of performing the inherent requirements of his role as a store manager and that “it was more likely than not that he would not have been able to do so for a considerable period after his dismissal.”

Thus, the FWC said that the employer had a valid reason for the dismissal related to the worker's capacity, and the dismissal was not harsh, unjust, or unreasonable.