AFEI Online Employers Adviser Article


Unfair dismissal: Employee cannot do the job but dismissal

unfair for other reasons

Published: 7 May 2015


An employee with a non work related injury was incapable of performing the requirements of his multi skilled job which required him to operate a range of heavy equipment in a coal mine. Of the six pieces of machinery which he was required to operate, only one, driving the service cart, was suitable because of his non work injury. Following years of being unable to perform his full pre injury duties and a workers compensation claim for aggravation of the injury, a series of new return to work plans involving training and a phased return to a wider range of duties was undertaken over a period of 16 months.

At this point his treating doctor certified the worker fit for driving the service cart only and relieving on some other equipment for up to one hour, on the proviso that he could stop and move around as needed within the hour or his condition would be aggravated. The employee was offered the assistance of a dietician and access to a gym to improve his general level of fitness.

At the employer’s request the employee was subsequently assessed by an occupational physician who in consultation with the other doctors involved stated that the worker was fit only for permanently modified duties which confined him to driving the service cart with a small component of each shift on other equipment. This was confirmed by a further independent medical assessment, with no prospect of him being able to perform the duties of an operator.

The mine required its operators to operate a broad range of equipment and had no alternative roles suited to the employee. As he was unable to fulfil the inherent requirements of his position the employee was dismissed.

The employee claimed unfair dismissal in the Fair Work Commission (Commission) which initially found that he was not unfairly dismissed as he had no capacity to do his job and the employer had met the tests for affording procedural fairness. However, on appeal a Full Bench of the Commission found that the Commissioner had failed to adequately consider the worker’s age, length of service, the exacerbation of his personal injury, his low level of literacy, and his family commitments. The Full Bench considered that these matters were centrally relevant in applying the Fair Work Act’s criteria for deciding if a dismissal is harsh unjust or unreasonable. This includes the proper consideration of “any other matters”, which in this case involved the personal and economic situation of the employee.

The Full Bench granted the employee permission to appeal the Commissioner's decision.


(Sipplev Coal & Allied Mining Services Pty Limited T/A Mount Thorley Warkworth Operations [2015], FWCFB 2586, 24/4/2015)


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