Fair Work Australia (FWA) has held that even though an employee was unable to perform the inherent requirements of the job, he had been unfairly dismissed because of the employer’s unsatisfactory approach to the dismissal.

The employee was a stock picker and also performed clerical duties. The employee injured his back and began performing restricted and alternative duties on a return to work plan. The employer later dismissed the employee relying on medical advice that he could not fulfil the inherent requirements of the job. The employee wrote to the employer a few days later raising concerns about the medical reports. The employer did not respond to that letter.

FWA found the employer had a valid reason for dismissing the employee as he was unable to pick for extended periods, which was an essential part of his role. The employee had been notified of this reason and given an opportunity to respond. However, FWA held the employer, being a large enterprise with human resources expertise, should have had a further meeting with the employee and responded to his letter. FWA held the employer had been hasty and did not appropriately consider its decision. Accordingly, the dismissal was unfair.

Mr David Mitchell v Coles Group Supply Chain Pty Ltd T/A Coles Liquor Group [2011] FWA 3162