TERMINATION OF EMPLOYMENT – incapacity – inherent requirements – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as Credit Assessment Officer – applicant also sole director of mortgage services company – Australian Securities and Investments Commission (ASIC) banned applicant from engaging in ‘credit activities’ for period of five years – ASIC based decision on applicant submitting two false and misleading annual compliance certificates – respondent submitted applicant unable to perform inherent requirements of role and failed to seek approval for outside business interest – lost confidence in applicant as she was not honest and forthright during investigations – whether applicant able to perform things essential to her position considered – it is the substantive position or role of the employee that must be considered and not some modified, restricted duties or temporary alternative position [Boag and Son] – an inability to perform inherent requirements of position will generally provide a valid reason for dismissal but will not invariably be so … dismissal based on an incapacity to perform inherent requirements of position may be valid reason if employee has capacity to perform inherent requirements of job [Qantas Airways Ltd v Christie] – Commission found effect of banning order meant applicant could not perform inherent requirements of position – also found applicant’s failure to be candid and honest, together with failure to notify respondent, were sufficient reasons that respondent could no longer have trust and confidence in her as employee – Commission found applicant not unfairly dismissed – application dismissed. Callychum v Australia and New Zealand Banking Group t/a ANZ
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