TERMINATION OF EMPLOYMENT – incapacity – inherent requirements – s.394 Fair Work Act 2009 – s.5 Disability Discrimination Act 1992 (Cth) – application for relief from unfair dismissal – applicant employed by respondent in intensive care unit for 17 years and held position of ICU Liaison Nurse – in November 2014, applicant received needle stick injury, resulting in three months off work – applicant returned to work following recovery through graduated return to work plan – in May 2015, applicant involved in car accident resulting in injuries that rendered her incapable of returning to work – applicant maintained contact with respondent to advise of her recovery progress – return to work co-ordinator unable to meet with respondent to discuss applicant’s return to work – in September 2016, applicant advised that no return to work program was available for her – applicant terminated from employment via letter dated 14 September 2016 – respondent submitted it had valid reason to dismiss applicant as she ‘had been absent from work for a significant period of time and that she remained unfit now and for an indefinite period to return to her pre-injury duties and hours’ – respondent’s decision to dismiss was based on TAC Certificate of Capacity stating applicant had ‘no capacity for employment’ from 12 September 2016 to 10 October 2016 and that it had not received any communication from TAC that applicant was capable of returning to her role – Commission held that as respondent made no inquiries into applicant’s ability to return to work at time it made decision to terminate her employment, it had no basis on which to conclude that applicant had ‘significant restrictions’ on ability to perform pre-injury job – held that evidence before Commission was that applicant could have returned to pre-injury duties on graduated return to work building up, over time, to normal hours of duty – held no valid reason for dismissal – held that, prima facie, respondent breached s.5 Disability Discrimination Act 1992 – held dismissal unfair – application granted – applicant sought reinstatement – reinstatement ordered. Maharaj v Northern Health
