In a recent unfair dismissal decision, the Fair Work Commission dismissed an employee’s claim that his termination was based on unfair process and that his capacity assessment was not based on his actual duties.

The employee was a forklift driver for a distribution warehouse and had been working for the employer for around five years. In late 2024 the company became concerned over the employees capacity to perform his role and requested he undergo a fitness assessment. This assessment was undertaken by an occupation therapist employed by the company’s insurer. At that time the employee was stood down on full pay until further notice.

The functionality assessment identified significant limitations, effectively resulting in the employee not being able to perform all the inherent requirements of his role. In March 2025 the company terminated the employees employment for his inability to perform the inherent requirements of his role.

The Claim

The employee then made an unfair dismissal application, claiming a range of matters made the termination unfair. This included the assessment was not based on his actual job, he was not provided with an interpreter for his assessment, that he had never been warned about his performance, and that he had submitted a medical certificate (from a GP) that he was fit for his daily work (although it recommended he avoid squatting, kneeling and prolonged walking or standing). He further claimed that being 67 years old, the difficulty he would have finding another job, exacerbated the dismissal being harsh, unjust, and unreasonable.

The Response

The company’s view was that the duties which the employee could not perform were inherent duties of a forklift driver and that the employee understood them to be inherent requirements. Further that exempting him from performing the full range of his duties would place an unreasonable burden on co-workers, and hiring additional employees for those duties was not a reasonable adjustment. Additionally, the company held the view that they had been more than fair and reasonable in the processes that eventually resulted in the termination of the workers employment. The company did admit the outcome was somewhat delayed, but that the employee had remained on full pay throughout the ‘stand down’ period.

The Decision

In dismissing the claim, the Deputy President found:

• Adjusting trays and warehouse-wide scanning of products are part of the inherent duties of a forklift driver at the company, and were contained within the position description. These were significant tasks and the company did not employ other workers to perform those duties.

  
  

• It would not have been a reasonable adjustment for the company to exempt the employee from performing those duties, as other employees had been covering them, and it would be unreasonable to expect this to continue or for the company to hire an additional person to cover parts of his job.

  
  

• Although he attempted to claim those duties were not part of his job, the employees own evidence to the Commission was that he could not do the warehouse-wide scanning or adjust the floors, which were found to be inherent requirements of his job. His own medical certificate did not constitute a full occupational assessment and did not contradict his admitted inability to perform these tasks.

  
  

• The company had a valid reason to dismiss based on the employees incapacity, as he was not able to perform all of the inherent requirements of his job.

  
  

• The use of an occupational therapist for assessment was deemed appropriate.

  
  

• The employees supervisor accompanied him to the assessment and provided translation for him where necessary.

  
  

• RTW or performance improvement plans were not considered appropriate in this capacity related case.

  
  

• The overall process applied by the company to investigate its concerns, offer an opportunity for the employee to respond, and was able to involve his lawyer was deemed appropriate and sufficiently formal and documented.

Thought list and takeaways

• Clearly define and consistently apply inherent job requirements. This decision underscores the critical importance of having a clear and accurate understanding of all the inherent requirements of a job.

• Conduct timely and appropriate capacity assessments. The company in this matter initiated a fitness assessment when concerns arose. Further experienced occupational therapists are capable of providing an occupational assessment. To ensure the assessment is thorough, provide comprehensive details on the duties, functions and requirements of the role.

• Thoroughly explore and document reasonable adjustments. The decision emphasises the employer's need to consider and assess potential reasonable adjustments for an employee unable to perform inherent requirements.

• Ensure robust procedural fairness. In this case the Commission held that the processes that resulted in the termination were appropriate and essentially complied with legislative considerations for unfair dismissal claims within the Fair Work Act.

• Minimise delays and maintain clear communication during capacity processes. While not rendering the dismissal unfair in this case, the decision noted a significant delay between the occupational assessment in October 2024 and the formal dismissal process beginning in February 2025. This serves as a reminder for employers to manage capacity assessment processes in a timely manner, ensuring that internal procedures are robust enough to continue progressing matters even during key personnel absences, to minimise stress and uncertainty for the affected employee.