We have known for some time that it is not discriminatory to refuse a person employment if they are unable to do the job.

The FWC has upheld this tenet in recent times with decisions relating to absences and “light duties” leading to employers dismissing employees that were unable to meet their work obligations.

Whilst “caution” is always the watchword with all dismissals, it would appear that the employer is not expected to keep a job open indefinitely awaiting the employees return from long standing absences or alternate duties (noting the FWA and Regulations has for some time provided for “temporary absence”).

With large organisations, missing or alternate employees can sometimes be the “norm” rather than proactively managed.  Of course each case should be decided on its merits.

Recent cases (both involving absence from work):

Kevin Rowe v V/Line Pty Ltd [2014] FWC 1437 (3 March 2014)

Mr Stephen Born v Aurizon [2014] FWC 22 (28 February 2014).

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:


  • General HR and IR advisory service.
  • Fair Work Commission representation (eg unfair dismissals, adverse actions, etc.).
  • Workplace investigations and mediations.
  • Policies and procedures.
  • Discipline & Termination.
  • People Audits (are you at risk of prosecution?).
  • Enterprise Agreements, Contracts of Employment, Individual Flexibility Agreements.
  • On-site HR services.

Contact Greg on 0438 906 050 or mailto: greg@gregreiffelconsulting.com.au.