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Capacity for the job and employer’s obligation to accommodate

An employer is entitled to dismiss an employee who for whatever reason if unconnected with the workplace is unable to perform the duties which are inherent in the position for which the employee is employed. However the employee’s decision about this judgment must be reasonably based and the Fair Work Commission, in an unfair dismissal case, will also take into account whether it would have been reasonable for the employer to make reasonable adjustments to the work required to accommodate the incapacity.
“Recently, in Lion Dairy and Drinks Milk Limited v Peter Norman [2016] FWCFB 4218 a Full Bench of the Commission summarised the principles to be applied when determining whether there was a valid reason for terminations related to incapacity. The Full Bench conducted a review of the relevant authorities and noted that in such cases employers are usually required to have regard to expert opinion rather than making their own assessment of what is essentially a medical question. When considering cases where capacity is in issue the Commission should have regard to the medical opinions that existed at the time of the decision to dismiss………………….. In the case of Jetstar Airways Pty Limited v Neetson-Lemkes [2013] FWCFB 9075 at [45] the Full Bench said:
“…S.387(a) therefore requires the Commissioner to consider and make findings as to whether, at the time of dismissal, Ms Neetson-Lemkes suffered from the alleged incapacity based on the relevant medical and other evidence before her an, if so, whether there were any reasonable adjustments which could be made to her role to accommodate her.”
It is clear that the requirement to consider whether reasonable adjustments may be made to a person’s role in order to accommodate incapacity requires a consideration of the substantive position or role, not a position or role that has been modified or restricted.”
Duarte v The Paraplegic & Quadriplegic Association of NSW (2017) FWC 175 delivered 20 January 2017 per Booth DP

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