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.

But a recent Fair Work Commission decision should make every employer stop and ask an important question:

Are your casuals genuinely casual, or are they permanent employees in disguise?

In one of the first significant decisions under the new Employee Choice Pathway provisions, the Fair Work Commission ordered Macquarie University to convert a long-serving casual academic to permanent part-time employment. The decision provides valuable guidance on casual employment, but it also reinforces a much broader lesson about the National Employment Standards (NES).

The Case

Gregory Baker had worked as a casual academic in Macquarie University’s School of Computing since 2023. He taught the same core subject across multiple semesters and was allocated the same teaching work again for future semesters.

Using the Employee Choice Pathway, Mr Baker notified the University that he believed his position no longer met the definition of casual employment and requested conversion to permanent employment. The University refused, arguing that its Enterprise Agreement did not permit a teaching-only role to be engaged on a permanent part-time basis.

The Fair Work Commission rejected that argument.

Commissioner Crawford found that the employee’s work was regular, predictable and ongoing, formed part of the University’s core operations, and was substantially similar to work performed by permanent employees. In practical terms, the arrangement looked much more like ongoing part-time employment than genuine casual employment. The Commission subsequently ordered the University to convert Mr Baker to permanent part-time employment.

Why This Decision Matters

Many employers still assume that if someone signs a casual contract, receives casual loading and works under separate engagements, they will automatically remain a casual employee.

This decision reinforces that the Fair Work Commission looks beyond the label and examines the reality of the working relationship. If work is ongoing, predictable and forms part of an organisation’s regular operations, calling someone a casual may not be enough.

The decision is particularly relevant for employers operating around school terms, funding cycles, seasonal demand, recurring projects or program-based work. A break between periods of work does not automatically preserve casual status if the overall pattern points to continuing and ongoing employment.

For many organisations, especially in education, community services, disability services, childcare and not-for-profit sectors, that is a significant takeaway.

The Most Important Lesson: The NES Always Comes First

While most commentary has focused on casual conversion, I think the most significant aspect of this decision is what it says about the National Employment Standards.

Macquarie University argued that its Enterprise Agreement prevented the employee from being converted because the agreement did not permit a teaching-only part-time role. The Fair Work Commission found that argument could not succeed because an Enterprise Agreement cannot remove or limit rights provided under the National Employment Standards. To the extent that a provision conflicts with the NES, it has no effect.

That’s a principle every employer should understand.

The National Employment Standards sit at the foundation of Australia’s workplace relations system. Whether it’s an employment contract, workplace policy, Enterprise Agreement or simply a workplace practice that has existed for years, none of these arrangements can remove or restrict a minimum entitlement provided by the Fair Work Act.

This is why compliance reviews should never focus solely on employment contracts. Enterprise Agreements, workforce models, classification structures, rostering practices and internal policies should all be reviewed from time to time to ensure they remain aligned with current legislation.

How To Do It Better

This case is a timely reminder for employers to look critically at their casual workforce. If employees have been engaged for years, work regular patterns, return every term, season or funding cycle, or perform work that is essential to the organisation’s operations, it may be worth re-assessing whether those arrangements still reflect genuine casual employment.

It is also a good opportunity to review contracts, policies and Enterprise Agreements to ensure they continue to align with legislative requirements. Many organisations are surprised to discover that a workplace practice that has existed for years no longer reflects current law.

The best time to identify these issues is before an employee raises them.

The Bloom HR Takeaway

There are really three lessons in this case.

The first is that casual employment is determined by the reality of the relationship, not just the wording of the contract. If work becomes regular, predictable and ongoing, employers should carefully consider whether the arrangement still reflects genuine casual employment.

The second is that the National Employment Standards remain the ultimate workplace safety net. No Enterprise Agreement, contract, policy or workplace custom can take away a statutory entitlement provided under the Fair Work Act.

The third lesson may be the one that shapes workplace disputes for years to come.

Mr Baker reportedly used AI tools to assist with researching legislation, reviewing case law and preparing his arguments. AI did not win the case. The law won the case. However, AI helped make workplace information more accessible to someone who may previously have needed a lawyer, union representative or significant time and resources to develop the same argument.

The balance of workplace knowledge is changing rapidly.

Employees can now access legislation, case law, Fair Work resources and practical guidance in ways that simply weren’t possible a few years ago. The information gap between employers and employees is shrinking.

For employers, the lesson is simple. Don’t assume employees won’t know their rights. Assume they will.

The organisations that will thrive in this environment won’t be the ones relying on technicalities, historical practices or gaps in knowledge. They’ll be the organisations whose employment arrangements are compliant, transparent and capable of standing up to scrutiny.

Because in a world where everyone has access to information, good employment practices matter more than ever.

Need help reviewing your casual workforce?

Bloom HR supports organisations across Australia with workforce reviews, employment compliance, Enterprise Agreement interpretation, workplace investigations and practical HR advice.

📞 02 8114 4449 📧 hello@bloomhr.com.au 🌐 www.bloomhr.com.au

#FairWorkFriday #CasualEmployment #EmploymentLaw #IndustrialRelations #HumanResources #PeopleAndCulture #WorkplaceRelations #FairWorkCommission #BloomHR

The post Fair Work Friday: Think Your Casuals Are Really Casual? The Fair Work Commission Says Think Again appeared first on Bloom HR.