TERMINATION OF EMPLOYMENT – incapacity – inherent requirements – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant worked as Personal Care Assistant and acquired additional duties as an After Hours Coordinator – lodged worker’s compensation claim in relation to alleged psychological injuries – respondent denied liability – claimed employment was not a substantial contributing factor to injury – applicant dismissed on basis of incapacity to carry out the inherent requirements of both positions – required to attend fact finding meeting in relation to allegations of altering the Webster pack of a client without the authorisation to do so – absent from work due to workplace injury and the exacerbation of symptoms due to alleged bullying – claimed to be subjected to bullying over a significant period of time leading up to dismissal – Commission satisfied that even if modifications to the role and provision of facilities or service to aid her were made, would still not be able to carry out the inherent requirements of both roles – Lion Dairy and Drinks Milk Limited v Peter Norman considered – employers are required to have regard to expert opinion rather than making own assessments regarding medical questions – respondent relied on opinion of medical expert to dismiss on incapacity – expert considered that even once she had reached remission ‘it would be prudent’ that applicant not be exposed to these workplace stressors as this may cause a relapse – Commission found that there was a valid reason for dismissal – applicant unable to undertake the inherent requirements of job as a result of incapacity – dismissal was not harsh, unjust or unreasonable – application dismissed. Duarte v The Paraplegic & Quadriplegic Association of NSW
