FWC examines balance between worker support and operational needs
The Fair Work Commission (FWC) recently dealt with an unfair dismissal application from an employee who had been absent from work for approximately five years due to multiple workplace injuries.
The worker, employed since 2005, challenged his termination in December 2024, arguing that his dismissal was unfair given the circumstances surrounding his injuries and the employer's handling of his case.
The worker's absence began in November 2019 following workplace injuries, including both physical and psychological harm. He argued that the employer had disregarded his mental health throughout the process and challenged the medical assessments that formed the basis of his termination.
The worker maintained that his dismissal was harsh and unjust, particularly considering the work-related nature of his injuries and the employer's alleged failure to properly support him during his recovery period.
The employer defended the termination, arguing that the worker's extended absence and medical evidence demonstrated an inability to perform the inherent requirements of his role.
The worker began his employment as a Lead Aviation Firefighter at Coffs Harbour aerodrome in September 2005. His role with Airservices Australia involved safety-critical responsibilities at the regional aviation facility, where he worked without major incident for over a decade.
The nature of aviation firefighting requires specific physical and psychological capabilities to respond to potential aircraft emergencies and maintain airport safety standards.
In February 2019, the worker sustained an injury to his right hand during the course of his employment. This injury resulted in an accepted workers compensation claim, marking the beginning of what would become an extended absence from the workplace.
The physical injury prevented him from performing the demanding duties required of an aviation firefighter, including operating specialised equipment and responding to emergency situations.
The situation became more serious in 2020 when the worker experienced a psychological injury following a code of conduct investigation conducted by Airservices Australia. While the decision did not elaborate on the nature of this investigation, it resulted in another accepted workers compensation claim.
The commission noted that "[the worker] has not performed any work since November 2019," establishing a timeline that would extend to approximately five years before his eventual dismissal.
Throughout this period, the employer continued to manage both the workers compensation claims and the operational challenges created by the worker's absence.
The employer sought medical assessments to determine the worker's fitness to return to his duties. In May 2023, more than three years after his initial injury, the worker attended a psychological assessment.
The psychologist's report "stated that [the worker] did not have the capacity to undertake any work at the time of the assessment or for the foreseeable future." This finding extended beyond just his specific aviation firefighting role to suggest a broader incapacity affecting any potential employment.
The medical evidence indicated both the severity of the worker's condition and the uncertain timeline for any potential recovery. During his extended absence, the worker continued receiving workers compensation payments, with the commission confirming: "There is no dispute that [the worker] remains in receipt of workers compensation payments of 75% of his normal weekly earnings in respect of both claims."
In October 2024, the worker underwent assessment by a Designated Aviation Medical Examiner (DAME), a specialised medical examination particularly relevant for aviation industry workers.
The report stated that "[the worker] would not be able to return to his role, and that there would be significant safety issues if he were to return." These findings directly addressed the safety-critical nature of aviation firefighting work and formed a crucial part of the employer's decision-making process.
Following receipt of the DAME report, Airservices Australia began formal termination procedures on 23 October 2024. The employer's letter to the worker stated: "based on all the available information, and given the medical advice and findings of [the DAME], as well as your ongoing incapacity to perform the requirements of your role, [the employer] is proposing that the most appropriate action in relation to your employment is termination of your employment."
The employer provided the worker with 14 days to respond, demonstrating adherence to procedural fairness requirements. On 6 November 2024, the worker's lawyer responded, requesting that the employer delay the termination and provide additional information.
This exchange showed the worker had legal representation and was given opportunity to challenge the proposed termination.
The employer considered the lawyer's response before communicating its final decision on 5 December 2024. The letter went to both the worker and his lawyer, providing answers to their queries while confirming the termination decision. This concluded the formal employment relationship after nearly two decades of service.
During the FWC hearing, the worker represented himself and provided both a witness statement and written submissions. He argued that the workplace injuries and subsequent code of conduct investigation had "destroyed his life."
The worker specifically challenged the medical evidence, claiming the Designated Aviation Medical Examiner was "unqualified to make the diagnosis he made."
The worker also argued that Airservices Australia had "disregarded his mental health" throughout the process. His case emphasised the personal toll of work-related conditions over five years, portraying himself as an employee whose career ended unfairly due to workplace incidents beyond his control.
In terms of remedy, the worker sought $2.2 million in compensation. This substantial figure reflected both the financial impact of losing long-term employment and his perception of harm caused by the employer's actions. His arguments attempted to shift focus from medical incapacity to the employer's alleged mishandling of his situation.
Airservices Australia's defence centred on the medical evidence accumulated over several years. The employer relied on both the May 2023 psychological assessment and the October 2024 DAME report, which consistently indicated the worker could not return to his safety-critical position.
The employer highlighted the specific requirements of aviation firefighting, including quick decision-making, physical agility, and ability to operate specialised equipment. The medical evidence suggested the worker could no longer meet these essential requirements, creating potential safety risks at the airport.
The employer also emphasised its procedural compliance, noting the formal notification, consultation period, and consideration of the worker's response through his lawyer.
Throughout the five-year absence, the worker had continued receiving workers compensation payments, demonstrating ongoing support despite operational challenges.
The FWC examined whether the dismissal was harsh, unjust or unreasonable under section 387 of the Fair Work Act 2009. Regarding valid reason for dismissal, the commission found: "I am satisfied on the evidence that [the worker] was not capable of performing the inherent requirements of his role at the time his employment was terminated.
At the time of his dismissal, he had been unable to perform any work for approximately 5 years. The medical evidence is clear that [the worker] was unfit and would not be fit to return to his pre-injury role in the foreseeable future."
The FWC also examined procedural fairness, finding the worker had been properly notified and given opportunity to respond through the October to December 2024 correspondence.
The decision acknowledged the worker's circumstances: "I have considered [the worker's] circumstances as outlined in his application, witness statement and submissions. Clearly the impact of his injuries has had a significantly detrimental impact on him."
Despite this acknowledgement, the commission concluded: "Having considered each of the matters specified in s.387 of the Act and for the reasons set out above, I am not satisfied that the dismissal was harsh, unjust or unreasonable. As a result, the application is dismissed."
This decision established that medical evidence of incapacity to perform inherent requirements, combined with proper termination procedures, could justify dismissal even in cases involving work-related injuries.
