Unfair dismissal and procedural unfairness


If procedures in relation to a dismissal are not properly managed, and shows a degree of procedural unfairness, Fair Work can order an employer to compensate the sacked (injured) worker even if the dismissal itself was actually justified.

It is well known that there can be a valid reason for dismissing an (injured) worker who does not have the capacity (or ability) to do their job due to an injury suffered. Basically such valid dismissal is based on the injured worker’s inability to carry out the inherent requirement of a job.

However, for example, should the injured worker’s employer sent “confusing” information (i.e. ambiguous letter, or 2 or more letters) procedural unfairness may be proven by the injured worker, which will see the dismissal harsh!

Below is a legal case explaining procedural unfairness and dismissal:

Unfair dismissal and procedural unfairness

In the case of L v Qantas Airways Limited [2015] FWC 6456 (24 September 2015), a long-term worker was sacked for “medical reasons” caused by a workplace injury. However, Fair Work deemed the dismissal harsh because the injured worker received 2 confusing letters from his employer regarding his termination, which caused a degree of procedural unfairness. As such the injured worker was compensated (reinstatement was not possible, hence compensation).

You can read the full text of this case: L v Qantas Airways Limited [2015] FWC 6456 (24 September 2015) here>>

Background of the unfair dismissal case

A Qantas baggage handler suffered several work injuries over the course of his employment, commencing 1989. In 1997 he suffered an injury to his left elbow; in 2001 he suffered a neck and shoulder injury; in 2001 he sustained bilateral ulnar nerve injuries and in 2005 he injured his back at work.

Since his 2001 injuries, the injured Quantas baggage handler was not able to work in his pre-injury duties, but was given suitable/modified duties instead. Over the years the worker’s condition worsened and by 2012 he was only able to undertake about 1.5 hours a day of data collection duties.

In March 2013, Qantas decided to help the injured worker find employment elsewhere. Part of the process involved the injured worker be assessed by an occuational physician who found that the injured worker could only perform restricted duties (for the foreseeable future); that he could not undertake overhead duties, no forward reaching, no bending and only allowed to carry 10 Kg.

On 14 May 2013, the injured worker attended a meeting where Qantas gave him 2 letters.

  1. The first letter, dated 14 May from Qantas’ HR department, stated the injured worker could not be given modified duties on an indefinite basis. It asked him to identify normal work the company could reasonably offer and to provide medical evidence in 7 days that he could perform his pre-injury role without risk of harm to his current condition.
  2. The second letter, dated 10 May from the workers compensation claims manager, advised him of Qantas intention to terminate his employment on medical grounds, which would require giving at least 28 days’ notice.

The injured worker believed the first letter meant that Qantas was considering terminating his employment and that, according to the 10 May letter, the termination would in fact happen after 28 days. He obviously was not able to provide the information or the medical evidence the employer sought.

He received Qantas’s letter of termination on 11 July 2013, and from that date his weekly payments were discontinued and his rehab ended.

Fair Work: Unfair dismissal

The injured worker applied to the Fair Work Commission  for  unfair dismissal ( s394 of the Fair Work Act 2009). He stated that the employer (Qantas) had failed to provide suitable employment consistent with its obligations under s58B of the Workers Rehabilitation and Compensation Act 1986 (SA) to workers incapacitated due to compensable injuries.

Qantas (the employer) however explained that the 10 May letter had only advised the injured worker of the intention to terminate his employment – it had not been a letter of termination.

The Fair Work Commission believed both letters could have been expressed in clearer language.

The commission also pointed out that s58B put the onus on the employer to provide suitable employment or to establish that suitable employment was not reasonably practicable. The provision would apply indefinitely if necessary, so the employer had wrongly suggested the light duties it had provided were only an interim measure. And it had not provided evidence of negative health and safety implications for other workers if the injured worker continued with the light duties he had been working in 2012.

Procedural unfairness

Since the injured worker was unable to return to pre-injury work (and fulfill the inherent requirements of the job), the FWC (Fair Work Commission) acknowledged that the employer (Qantas) actually had a valid reason for the injured worker’s dismissal. However, it also found there had been procedural unfairness.

According to the FWC, the injured worker had been denied adequate opportunity to respond to the reasons for his dismissal. The confusion caused by the 2 separate letters and the 7-day period in which to provide information, including medical evidence, had been unrealistic, said FWC. In addition, there was also evidence to suggest the decision to terminate the injured worker had already been made when the 2 letters were given.

The FWC noted the injured worker had been given 4 weeks’ pay in lieu of notice on termination, whereas according to the relevant industrial instruments he should have been given 5 weeks. The fact the injured worker was 56 years old and had given 23 years of service, and that the physical limitations caused by work injuries severely restricted his ability to find other employment were additional issues that made the dismissal harsh.

Reinstatement was not appropriate in this case, but the injured worker was found to be entitled to an award of compensation.

If procedures in relation to a dismissal are badly managed, an employer could well be ordered by FW to compensate the injured worker even if the dismissal itself was justified!


tipBefore seeking any unfair dismissal remedy, ensure you consult a decent work injury lawyer as not to jeopardise your workcover claim (i.e. a potential common law claim).

The issue of sacking an injured worker

An employer is not entitled to dismiss an injured worker simply because the worker is injured. However, when a reasonable time has passed and the prospects of the injured worker being able to carry out the work are slight, then an employer is entitled to act to end the employment.

For example see: M v BHP Billiton WAIO P/L [2015] FWC 3160 (16 September 2015)]

Another 2 decisions involving well-known unfair dismissal claims  can be found here– Ermilov and Birdi – the dismissal was based on the injured worker’s inability to carry out the inherent requirement of a position and was a valid reason for termination.

Here is another case: S v Serco Sodexo Defence Services P/L t/a Serco Sodexo[2014] FWC 2855 (5 May 2014)]

The employer in this case was not obligated to employ the injured worker indefinitely, in circumstances where it had attempted to facilitate her return to work over a reasonable period of time. It was clear she would continue to be unable to perform the inherent requirements of their job.

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