After prolonged psychological injury, why couldn't reasonable adjustments save her job?
The Fair Work Commission (FWC) recently dealt with a case concerning a worker who was dismissed after an extended period of absence due to a workplace psychological injury.
The worker had been employed for approximately 2.5 years before being terminated on the grounds of inability to perform the inherent requirements of the position.
The worker argued that her dismissal was premature, claiming the employer had failed to address workplace bullying concerns that contributed to her condition. She maintained that with proper accommodations, she could have returned to work despite restrictions noted in her medical certificates.
At issue was whether the employer had valid reasons for termination and followed proper procedures, or whether they acted too hastily without exploring all options for the worker's return.
The worker was employed as a childcare worker at Nought to Five Early Childhood Centre from August 2022 until February 2025. In December 2023, she began experiencing stress at work and consulted her doctor.
Following incidents in February 2024 related to staffing ratios, she attended a meeting with the employer on 1 March 2024 to discuss her conduct. During this meeting, she became distressed and produced a medical certificate, starting a period of leave and filing a workers' compensation claim.
Though initially rejected in May 2024, her workers' compensation claim was accepted in August 2024 on the basis that she had a work-related psychological condition causing incapacity for work. This began what would become nearly 12 months of absence from the workplace.
The worker also applied to the FWC for orders to stop bullying at work, though this file was eventually closed as she was no longer attending the workplace. A psychiatric assessment diagnosed her with adjustment disorder and stated that the workplace was "a significant factor in the onset of" her condition.
By August 2024, the worker received medical clearance for limited duties of eight hours per day, two days per week, but with a restriction that she have "minimal contact with the previous ECT," referring to the centre's Toddler Room Educator.
The employer expressed concerns about accommodating this restriction given the centre's setup and obligations under the Education and Care Services National Law Act 2010. After a workplace assessment, the rehabilitation provider concluded it would not be feasible for the worker to return under the current restriction.
By November 2024, the rehabilitation provider informed the employer that the worker's return-to-work goal was to find a "new employer" and that she had been approved for job seeking services.
The provider clarified, "the current goals of the [worker's compensation] claim are for [the worker] to either find new employment – or for her to obtain a final pre-injury duties certificate."
A January 2025 medical certificate included in the management plan: "1/cont psychological treatment 2/ help to seek for new jobs of different employers." The worker was certified as "fit for some type of employment" for 20 hours per week.
On 5 February 2025, after nearly a year of absence, the employer wrote to the worker asking her to show cause why her employment should not be terminated based on her inability to perform the inherent requirements of her position.
The worker responded by raising concerns about workplace bullying and noting her work capacity had increased to 20 hours per week. She argued termination appeared premature, requesting a "comprehensive review" of her case and suggesting reasonable adjustments.
When asked directly by the president of the centre's Management Committee to confirm if she was participating in a program to find alternative employment, the worker did not answer directly.
Instead, she claimed there was a "notable absence of a structured return-to-work plan" from the employer and requested a meeting to discuss returning with appropriate adjustments.
The Commission determined that based on medical evidence, the worker was not cleared to return to her specific workplace despite being certified for "some work" elsewhere.
"On the limited medical evidence available as at the date of termination on 12 February 2025, [the worker] was not certified as fit to return to work at the Centre. Her treatment plan was directed at helping her to find new employment with a different employer," the Commission stated.
The FWC noted the worker's incapacity specifically for work at the centre had lasted almost 12 months with no evidence suggesting she would be able to return: "There was no medical or other evidence to indicate that she was likely to return to work at the Centre either in the reasonably foreseeable future or at all."
The Commission observed that the worker appeared to have used ChatGPT to draft her responses, which may have led to misunderstanding the central issue:
"...the responses did not answer the question asked by [the employer] directly and appear to have misconceived the issue in dispute as being one of refusal to make reasonable adjustments (by accommodating her restricted hours of work) instead of the actual issue, which was her (in)ability to return to work at the Centre at all."
On this point, the Commission cautioned: "Such tools can be immensely useful, but they are no substitute for one's own knowledge and understanding of the facts or issues. Further, relying on documents without understanding what they say or mean is fraught with risk."
The Commission ultimately ruled: "[The employer] was entitled to rely on the advice it had received from [the worker's] doctor and from [the rehabilitation provider] that [the worker] was not fit to return to work at the Centre and was seeking alternative employment."
The decision concluded: "On balance, I am not satisfied that the dismissal was harsh, unjust or unreasonable... It follows that [the worker] has not been unfairly dismissed."
This case demonstrates the importance of thorough documentation when managing long-term workplace injuries, particularly when medical evidence indicates an employee cannot return to their original workplace.
