What makes a dismissal fair when medical conditions limit work capacity?
The Fair Work Commission (FWC) recently dealt with an unfair dismissal claim under section 394 of the Fair Work Act 2009, where a worker argued she was unfairly dismissed after her medical condition prevented her from performing domestic assistance duties.
The worker said her previous employer had successfully accommodated her condition by assigning mostly non-domestic duties, and argued that her dismissal was discriminatory since she could still perform other aspects of the role.
The worker started working with Uniting AgeWell Limited in June 2022 after their acquisition of Guardian Network, a labour hire agency that previously employed her.
She had osteoarthritis in her knees that affected her ability to perform manual domestic tasks associated with home care.
According to the decision, her doctor's September 2022 report indicated she could perform certain tasks with restrictions, including cleaning floors, sweeping, mopping and vacuuming for 60-90 minutes daily, and carrying loads up to 7kg.
In May 2024, she informed her employer she could no longer perform domestic assistance duties. The employer placed her on 'special paid leave', continuing to pay her average fortnightly wages despite her casual status.
After an unsuccessful attempt to obtain a report from her current doctor, the employer arranged an independent medical assessment. From the decision:
"[The doctor] stated that [the worker] had confirmed to him that she did not believe that she could do heavy tasks, including vacuuming, mopping, or cleaning the bath and shower, and that she and her treating doctor believed that she could not do general household chores."
The employer's director of people testified that domestic assistance duties comprised 80% of their services:
"[The employer's] homecare business model is built around providing comprehensive care for its clients, and that the majority of care provided involves helping clients with household tasks such as cleaning, meal preparation, shopping and other non-medical assistance."
The evidence showed the business model required workers to handle comprehensive care. The director of people explained:
"It would not be practical to send a home care worker to do the domestic assistance work for a client and then send a second worker to do the other work."
The director also noted that allocating more domestic work to other staff members would be unfair, as most preferred using their qualifications for non-domestic assistance work.
The Commission found the dismissal was not harsh, unjust or unreasonable, stating:
"I find that it was an inherent requirement of [the worker's] role as a home care worker with [the employer] that she be able to perform domestic assistance duties, and that she was unable to perform that work."
Addressing why the previous work arrangement couldn't continue, the Commission noted:
"The fact that [the previous employer] was able to deploy [the worker] substantially on non-domestic assistance work does not mean that [the employer] should reasonably have done so. As [the director] explained, [the employer] is a different business with a narrower client base and different requirements."
The Commission dismissed the application, concluding there was no discrimination:
"It dismissed her because she could not meet the requirements of the role. I do not consider that it would have been reasonable for [the employer] to roster [the worker] only on non-domestic assistance work; for [the employer], this would entail an inefficient and unfair segmentation of labour."
