TERMINATION OF EMPLOYMENT – incapacity – inherent requirements – ss.385, 387, 394 Fair Work Act 2009 – respondent placed applicant on sick leave – respondent implemented return to work plan – applicant expressed concern about anticipated return to any work under direct supervision of supervisor – respondent reacted to applicant concerns by ceasing the return to work plan and instructing applicant to leave workplace – respondent decided applicant was to return to work and report to a new manager – applicant did not return to work and provided medical certificate – respondent wrote to applicant seeking advice about applicant’s medical condition and prognosis for return to work – applicant’s medical practitioner responded to letter advising applicant had no current capacity to work – respondent sent a letter to applicant advising that it intended to make a determination of the applicant’s ongoing employment following more than a three month absence on unpaid leave – respondent advised it was considering deeming the applicant medically unfit for a return to work resulting in termination of employment – advised applicant able to submit any further material regarding capacity to return to work by certain date – applicant’s solicitor requested a one week extension in order to submit further information – respondent granted extension – applicant’s solicitor requested further extension to submit material – respondent denied request – sent letter of dismissal by email advising that it had formed view that applicant had refused to work – applicant submitted unfair dismissal on basis of procedural unfairness – respondent submitted applicant unable to perform inherent requirements of the role – Commission found applicant’s medically certified absence did not represent any established refusal to perform work but confirmed incapacity to work – found that actual reason for dismissal may have involved frustration of employment due to extended absence – held there can be a valid reason for dismissal even if reason not properly or accurately articulated – Commission unable to establish valid reason for dismissal in absence of any evidence from decision maker – respondent provided no explanation as to why second request for an extension of time was refused and respondent proceeded to dismiss applicant when information about applicant’s medical prognosis was important – Commission held that applicant was not provided with a proper opportunity to respond – found denial of natural justice in dismissal without opportunity of a meeting – found method of communicating dismissal by email was harsh – applicant’s claim for unfair dismissal upheld – compensation appropriate remedy – ordered an amount equivalent to one week’s remuneration. Finnegan v Komatsu Forklift Australia P/L
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