The Fair Work Commission has ruled that an employee dismissal for workplace injury was unfair. 

The FWC was recently called to rule on the case of a worker dismissed after taking a prolonged absence due to a workplace injury. 

The employer sacked the worker for “continuing incapacity” to perform her role. However, the Commission has uncovered a series of substantive and procedural flaws in the employer’s approach.

The employee was a medical receptionist at a health centre in Queensland who was diagnosed with an acute stress reaction, brought on by workplace bullying by the centre’s director. 

The employee received weekly workers’ compensation payments for her psychological injury and was absent from work from August 2020.

In February 2021, the centre emailed the employee to tell her that her employment was terminated due to “continuing incapacity to undertake the position”. 

The employee subsequently filed an unfair dismissal claim with the Fair Work Commission.

The employee said the centre had failed to investigate the extent of her incapacity to work, and so it had no valid reason to dismiss her. 

The Commission heard that the employee received an unsatisfactory performance review prior to making a claim for workers’ compensation, but it said that even if the dismissal was due to her performance review, there was no evidence to suggest that the employee was warned that she was at risk of termination.

The Commission found that it had no “sound, defensible or well-founded reason” for her termination. 

Further, the employee was also found to have been denied procedural fairness, as she was not afforded an opportunity to respond to the reasons for her dismissal.

The Commission determined that the employee was unfairly dismissed, but it declined to award compensation as the employee suffered no material loss of income due to her workers' compensation payments.