TERMINATION OF EMPLOYMENT – incapacity – inherent requirements – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant dismissed on basis of inability to perform inherent requirements of job – commenced employment in April 2004 and suffered back injury at work in July 2013 – workers compensation claim accepted – for the balance of employment, applicant remained on restricted duties involving limitations upon duties undertaken and hours of work – Commission considered J Boag regarding inherent requirements – found decision to dismiss premature – only medical evidence considered conditional, not conclusive – capacity for additional treatment to deal with applicant’s depressive illness and/or pain symptoms not fully explored – proper job analysis of work available to be performed by applicant not done – while there were very real concerns about likelihood of applicant ever returning to full employment and questions about capacity to perform inherent requirements of job, there was insufficient foundation for that proposition based upon the evidence before Commission – fact that the Claims Agent acting for the relevant Workers Compensation authority effectively approved the dismissal cannot substitute for the Commission’s own assessment of the circumstances based upon evidence – no valid reason for dismissal – Commission found dismissal unfair – reinstatement inappropriate – compensation of $3,660 less taxation, and superannuation of $2,434 ordered. Blackburn v ISS Health Services P/L.
