These situations often involve long-term illness, workplace injuries, psychological injuries or extended periods of absence. They are emotionally difficult, legally complex and rarely come with a clear answer.

Many employers assume they need a doctor to declare an employee “permanently incapacitated” before termination can be considered.

Recent Fair Work Commission decisions suggest that isn’t the real test.

The real question is whether the employee can perform the inherent requirements of the role, with reasonable adjustments, and whether there is a realistic pathway back to doing so.

Two similar cases. Two different outcomes.

The dismissal that was upheld

In Daunis v Rivercity Ferries Pty Ltd, the employee could not safely perform the physical requirements of her role and any return depended on future surgery with no reliable timeframe or evidence that it would restore full capacity. The employer considered adjustments but demonstrated they would not overcome the essential requirements of the job. The Commission upheld the dismissal.

The dismissal that wasn’t

In Grujicic v Lineage Aust Trs Pty Ltd, the employee’s specialist said he was fit for full-time work and recommended a trial to determine his actual capacity. The employer dismissed him before that trial occurred. The Commission found the employer had reached a conclusion that the medical evidence did not support.

So what does Fair Work actually look at?

The lesson from these cases is not that employers must wait forever.

It’s also not that an IME automatically creates a pathway to termination.

What Fair Work appears to be looking for is whether the employer has enough evidence to make a reasonable decision.

Before terminating, employers should be able to answer:

• What can the employee do today?
• What can’t they do?
• What do the medical specialists actually say?
• What reasonable adjustments have been considered or trialled?
• Is there a realistic pathway back to performing the role?
• If there is, what is the timeframe?
• If there isn’t, what evidence supports that conclusion?

The more clearly an employer can answer those questions, the stronger the decision is likely to be.

How far do reasonable adjustments go?

Employers must genuinely consider reasonable adjustments.

That might include modified duties, altered hours, workplace modifications, graduated return-to-work arrangements or assistive equipment.

However, employers are generally not required to:

• remove the core duties of the role permanently;
• create a new position that does not exist;
• indefinitely transfer essential duties to other employees; or
• continue arrangements that are no longer workable.

Importantly, what is reasonable may look very different between organisations.

A large employer with significant resources, redeployment opportunities and multiple teams may be expected to accommodate restrictions for longer than a small organisation with limited staffing, limited budgets and no alternative positions available.

That does not mean larger employers must accommodate indefinitely, nor does it mean smaller employers can terminate simply because arrangements are inconvenient.

It does mean Fair Work will often assess reasonableness in the context of the employer’s size, resources, operational realities and ability to sustain the arrangement.

Is it different when it’s a workplace injury?

Often, yes.

A non-work-related medical condition is usually a capacity issue.

A workplace injury can be a capacity issue, a workers compensation issue, a return-to-work issue and sometimes a workplace rights issue all at the same time.

That is why workplace injury cases tend to carry higher risk and require much greater care before termination is considered.

The Bloom HR takeaway

If you’re looking for a simple answer to:

“When can I terminate?”

Unfortunately, there isn’t one.

There is no point where an employer can simply decide they have waited long enough.

Every case turns on its own facts, its own medical evidence, the role involved, the availability of reasonable adjustments and the resources of the employer.

The safest approach is not to ask:

“Can we terminate?”

The better question is:

“Do we have enough evidence to reasonably conclude there is no realistic way for this employee to perform the role?”

If you’re not sure of the answer, you’re probably not ready to make the decision.

That’s why capacity-based dismissals are one of the few areas of employment law where getting advice before acting is almost always more effective than defending the claim afterwards.

Here to help

Managing a long-term illness, psychological injury or workplace injury matter?

Before moving towards termination, make sure your medical evidence, assessment of reasonable adjustments and consultation process are as strong as your intentions.

Bloom HR supports employers across Australia to navigate complex capacity, fitness-for-work and return-to-work matters with confidence, compliance and compassion.

We offer a complimentary 30-minute consultation with our Founder and CEO, Natalie Carrington.

Schedule a consultation

The post When is it fair to terminate an employee who can no longer do the job? appeared first on Bloom HR.

When most employers hear “flexible work request”, they think about changes to hours, working from home arrangements, or adjusted start and finish times.

However, a recent decision involving logistics giant DHL considered whether an employee could use the flexible work provisions of the Fair Work Act to seek an exemption from a workplace mobile phone ban that had been implemented for safety reasons.

The employee ultimately lost the case, but the Commission’s reasoning may have wider implications for employers managing workplace policies.

The Case: A Flexible Work Request or a Challenge to a Workplace Policy?

Mr Thanh Long Duong worked in a DHL warehouse that prohibited employees from carrying personal electronic devices while performing operational duties.

The policy was implemented as a safety measure to reduce distractions and minimise the risk of workplace incidents.

Mr Duong sought an exemption from the ban due to his family circumstances. His children suffer from serious medical conditions, including severe asthma and anaphylaxis, and he wanted to be contactable should an emergency arise.

Rather than simply requesting an exception to the policy, Mr Duong relied on the flexible work provisions under section 65 of the Fair Work Act and argued that being permitted to carry his phone was a change to his “working arrangements”.

DHL argued the request did not relate to a working arrangement at all and that the flexible work provisions were intended to address matters such as working hours, work patterns and work location.

The Background: Why the Decision Matters

Before determining whether DHL was entitled to refuse the request, the Fair Work Commission first had to decide whether the request was capable of being considered under the flexible work provisions.

This was the critical issue.

Deputy President Bell found that the mobile phone prohibition was sufficiently connected to the performance of work to potentially constitute a “working arrangement”.

While the Commission ultimately accepted that DHL had reasonable business grounds to refuse the “flexible work request” due to workplace safety concerns, the decision confirmed that flexible work requests may extend beyond traditional arrangements such as hours and locations of work.

In practical terms, the Commission recognised that workplace policies may, in some circumstances, fall within the scope of the flexible work framework.

For employers, that is arguably the most significant aspect of the decision. Even though in this case the request was denied, the potential that employees may challenge workplace policies through a flexible work request is the issue. It means that flexible work requests are broader than employers previously understood.

How to Do It Better

1. Don’t Assume Flexible Work Requests Only Relate to Hours and Working from Home

Employers should carefully assess the substance of a request rather than dismissing it because it does not fit a traditional flexible work scenario. The Commission’s approach suggests that other workplace arrangements may also require consideration under the flexible work provisions.

2. Ensure Your Refusal Reasons Are Well Documented

DHL was successful because it could demonstrate legitimate workplace safety concerns and reasonable business grounds for refusing the request. Employers should ensure they can clearly articulate and evidence the operational, safety or financial reasons supporting any refusal.

3. Focus on the Process as Much as the Outcome

Even where an employer ultimately refuses a request, the consultation process matters. Taking the time to genuinely consider the employee’s circumstances and explore alternatives will place an employer in a much stronger position if the decision is later challenged.

The Bloom HR Takeaway

This decision highlights how difficult it is becoming for employers to navigate an ever-expanding range of workplace obligations.

Most employers would reasonably expect flexible work requests to deal with issues such as working hours, work patterns or location. Few would anticipate that a workplace safety policy could potentially become the subject of a flexible work dispute.

While the Commission ultimately upheld DHL’s decision, the broader interpretation of what may constitute a “working arrangement” creates further uncertainty for employers already trying to balance operational requirements, employee needs and workplace safety obligations.

The challenge is not that employers are unwilling to provide flexibility. The challenge is knowing where the boundaries are.

When concepts designed for one purpose begin extending into entirely different areas of workplace management, it becomes increasingly difficult for employers to understand their obligations with confidence. If HR professionals, lawyers and Commissioners are debating where those boundaries sit, it is easy to see why many employers are struggling to keep up.

Has your organisation reviewed its flexible work request process to ensure it is equipped to respond to increasingly complex requests? At Bloom HR, we help employers assess flexible work requests, manage risk, and balance compliance obligations with practical operational needs.

Schedule a 30 minute free consultation by calling us on (02) 8114 4449 or booking a meeting with a senior consultant here.

#FairWorkFriday #FlexibleWork #EmploymentLaw #HumanResources #Leadership #WorkplaceRelations #WorkplaceSafety #SmallBusiness #NFP #BloomHR

The post Fair Work Friday: Can Employees Use Flexible Work Laws to Challenge Workplace Policies? appeared first on Bloom HR.