TERMINATION OF EMPLOYMENT – incapacity – inherent requirements – ss.385, 387, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant was employed as a cleaner for 5 ½ years with respondent – applicant underwent periods of unpaid personal leave to obtain medical treatment – up until dismissal on 6 February 2017, applicant and respondent maintained communication about the medical prognosis – respondent’s internal counsel dismissed applicant by telephone – made own medical determination not based on any proper medical opinion – determined applicant could no longer perform the inherent requirements of the role although applicant received a certificate of fitness to resume duties shortly afterwards – applicant submitted dismissal was invalid and lacked procedural fairness – not afforded opportunity to respond to reason for dismissal nor offered a support person – further submitted respondent’s factual finding was premature, incorrect and invalid – applicant sought reinstatement with no loss of continuity and payment of lost remuneration – respondent contended applicant’s dismissal was valid and it had been previously advised applicant would not be certified fit for pre-injury duties – submitted attempts were made to clarify the appropriateness of the communication medium – criticised applicant’s failure to attempt to regain employment – Commission held dismissal was harsh, unjust and unreasonable – found respondent denied applicant natural justice – found there was no valid reason for dismissal – communication medium ensured applicant had no opportunity to have a support person – no medical basis to conclude the inherent requirements of the role could not be met – noted procedural requirements were not simply matters of technical process but important prerequisites designed to avoid erroneous decision making – found order of reinstatement; order to maintain continuity; and order to restore lost pay appropriate – orders issued separately – order to restore lost pay to be agreed by parties – matter can be listed for further proceedings for Commission to determine the amount. Bennett v Colin Joss & Co P/L t/a Joss Facility Management
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