TERMINATION OF EMPLOYMENT – incapacity – ss.385, 387, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as daily hire meat processor – dismissed by letter on 27 January 2017 – reason for termination – excessive absence from the workplace – respondent submitted absence no longer a temporary absence – applicant unfit for work from 7 October 2016 because of non-work related illness – respondent provided with medical certificates which established applicant unfit for work from 3 January 2017 to 3 April 2017 – respondent inquired about applicant’s capacity as it was considering termination – applicant provided a show cause response establishing intention to return to work from 4 April 2017 onwards – at conciliation respondent’s reinstatement offer was rejected – respondent submitted to Commission any future orders should be restricted to reinstatement – applicant sought order for maximum compensation as she believed working relationship was damaged beyond repair and was concerned of potential victimisation – matter determined by determinative conference because limited factual disputes; language barrier; and parties were unrepresented – respondent apologised and accepted dismissal was unfair and they could not lawfully terminate applicant until after temporary absence had eventuated – respondent provided reassurances to applicant and re-encouraged applicant to consider offer of reinstatement – Commission provided applicant opportunity to reconsider – applicant declined offer – Commission satisfied applicant’s dismissal was unfair but not persuaded relationship had irretrievably broken down – accepted respondent’s apology and offer were genuine – found applicant’s refusal to return to work were unfounded in circumstances – found neither an order for compensation nor an order for reinstatement were appropriate – application dismissed – order dismissing application issued. Gumwel v JBS Australia P/L
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