The Case

(2018)

Mr Kothandan was employed as a bus driver with Transdev Melbourne Pty Ltd (Transdev). In July 2016, Mr Kothandan suffered a workplace injury that resulted in him being unable to drive a bus for a period of time. Mr Kothandan later developed neck pain and in November 2016 was diagnosed with an adjustment disorder. By November 2017, Mr Kothandan was still not able to return to his preinjury duties.

In November 2017, Transdev advised Mr Kothandan that it was considering terminating his employment as the medical evidence indicated he could no longer work as a bus driver. Mr Kothandan was given an opportunity to provide a response. Thereafter Transdev terminated Mr Kothandan’s employment.

Mr Kothandan lodged an unfair dismissal claim against Transdev.

Mr Kothandan claimed:

• there was no valid reason for the dismissal;
• Transdev had not provided appropriate treatment or support for his recovery; and
• Transdev had failed to provide him with a safe workplace.

The Verdict

The Fair Work Commission (FWC) found there was a valid reason for the termination of Mr Kothandan’s employment and dismissed the unfair dismissal application.

The FWC held that the medical evidence at the time of the dismissal showed Mr Kothandan could not perform the inherent requirements of his job – driving buses for at least 1 hour at a time.

It also found that over a period of 18 months, Transdev had supported Mr Kothandan’s return to work and was not obligated to hold Mr Kothandan’s position open for him indefinitely when he could not perform the role.

The Lessons

It is unlawful to dismiss an employee for a temporary absence due to illness or injury unless the employee’s paid sick leave has been exhausted and the employee has had absences of 3 months, or periods equalling 3 months in a 12-month period.

When terminating the employment of an ill or injured worker, it is important for the employer to provide the employee with the opportunity to recover and support the employee in that recovery. The decision to terminate must be supported by medical evidence that the employee cannot return to work to perform the inherent requirements of their position within a reasonable period of time. Prior to making the decision to terminate, the employee should be given an opportunity to provide reasons or medical evidence why their employment should not be terminated.

An employer is not required to maintain the employee’s substantive position indefinitely or provide suitable duties to the employee indefinitely. The employee must be able to return to the position for which they were employed unless the employer decides they are willing to change the employee’s role on a permanent basis, which the employer is not obliged to do.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.