On 13 April 2018, in the decision Mr Vijayan Kothandan v Transdev Melbourne Pty Ltd T/A Transdev  FWC 2119, the Fair Work Commission (Commission) upheld a dismissal of a bus driver (Employee) by the major public transport provider Transdev Melbourne Pty Ltd (Employer), in circumstances where the Employer was kept off the road for a period of 16 months due to a combination of nerve pain and anxiety.
The Employee’s physical issues began in July 2016, some 18 months after he was first employed, when he experienced pain in his left wrist and thumb while driving. Over the course of 16 months, the Employee spent little time at work and performed modified, light duties. The Employer attempted to involve him in return to work plans, however, this process was largely unsuccessful due to doctor’s certificates and the Employee’s anxiety attacks.
On 13 November 2017, the Employee’s employment was terminated on the grounds that his restricted medical capacity prevented him from safely performing his role.
The Employee applied for an order for unfair dismissal under the Fair Work Act 2009 (Act), and argued that he was not given the chance to rehabilitate and was not given appropriate medical treatment.
Under the Act, a person has been unfairly dismissed if the Commission is satisfied:
The issue which required consideration was whether the redundancy was harsh, unjust or unreasonable. The Commissioner considered whether there was a valid reason for dismissal, specifically, whether the Employer was unable to fulfil the inherent requirements of his role.
In this case, the Employer’s substantive role was a bus driver. The parties agreed that this was a safety sensitive position, as the Employee was required to drive the bus on public roads, transporting passengers safely across pre-determined bus routes.
The decision of J Boag and Son Brewing Pty Ltd v Button was referred to, where it was held that when an employer relies upon incapacity to perform the inherent requirements of his position or role, it is the substantive position or role of the employee that must be considered, and not some modified, restricted duties or temporary alternative position.
Commissioner McKinnon considered that at the time of the Employee’s dismissal, the medical evidence established that the Employee’s condition prevented him from regularly driving buses for periods of at least one hour at a time, while applying a sustained level of attention, concentration and judgment. The Employer was only able to drive short distances, accompanied by his wife, as he suffered anxiety and panic attacks.
Ultimately, Commissioner McKinnon found the medical evidence supported that at the relevant time the Employee did not have the capacity to work as a bus driver, and that no “additional time, or more information or opinion would have made any difference to the outcome.” It was ultimately held that as the Employee did not have the capacity to work as a bus driver at the time that he was dismissed, there was a valid reason for dismissal.
What this means for your business
At the time the Employer made the decision to dismiss the Employee in this case, his employment file contained numerous capacity-to-work assessments, return to work plans as well as inconclusive specialist diagnoses and supervisory meetings. A formal review was conducted and the Employee was given an opportunity to respond.
There are a few key take away messages from this case:
Please contact us if you have any concerns regarding dismissing an employee on the basis that he or she is not able to perform the inherent requirements of the role.
Rachel Drew, Partner
T: +61 7 3135 0617
Charles Power, Partner
T: +61 3 9321 9942
Benjamin Marshall, Partner
T: +61 3 9321 9942
Stephen Trew, Managing Partner
T: +61 2 8083 0439
Michael Selinger, Partner
T: +61 2 8083 0430
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources.
Published by Rachel Drew, Sasha de Muelenaere