Uijland v Airservices Australia: Dismissal for incapacity upheld
9 October 2020 by Nes Demir
Mr Uijland was employed as an Air Traffic Controller which required a Class 3 Medical Certificate. He took extended leave after he suffered a non-work-related shoulder injury. While undergoing a functional assessment of his shoulder injury arranged by his employer, he suffered a back injury. His employer accepted liability for this injury.
He was unable to renew his Class 3 Medical Certificate and medically certified to undertake light duties for 3 hours per day. His employer determined it unlikely he would regain his qualifications within a reasonable timeframe and proposed a number of redeployment opportunities. Mr Uijland was advised his employment would be terminated should he not be successfully redeployed within 4 months.
Mr Uijland waited until the last minute and applied for one redeployment opportunity, for which he was unsuccessful. He rejected the other opportunities and insisted his employer wait for the results of untrialed “scrambler therapy” which may resolve the pain issues preventing him from regaining his qualifications. His employment was terminated.
The FWC upheld the dismissal and noted Mr Uijland’s dogged determination to treat the proceedings as some sort of roving inquiry into the perceived failure of his employer to take full responsibility for his back injury (which it had anyway).
- The validity of a dismissal decision on capacity grounds is to be assessed on the material available to the employer at the time of dismissal and not some uncertain, indefinite, speculative time in the future. In this case, there was no medical evidence at the time as to the effectiveness of the scrambler therapy or what timeframe it would take to complete the treatment. There was also no evidence that Mr Uijland would be fit to return to his pre-injury duties at that time or in the foreseeable future.
- Employers are entitled to consider redeployment opportunities on a merit basis and are not required to create a position acceptable to an employee for redeployment, as Mr Uijland tried to argue in this case.
- An employer’s obligation to provide an employee with an opportunity to respond to a proposed termination and genuinely consider the response is not a requirement that the employer agree with what the employee says in their response.
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