Commission backs dismissal of employee who was absent for 100+ days
A recent Fair Work Commission (Commission) decision highlights the limits of employer obligations when managing long-term illness and uncertain return-to-work prospects. In the case of Jodie Daunis v Rivercity Ferries Pty Ltd, an employee with significant health issues and 114 days of absence in a 12-month period had her unfair dismissal claim rejected, reinforcing that where medical evidence does not clearly support a safe and timely return to work, dismissal may be justified.
Key facts
The employee commenced employment with Brisbane’s river ferry network in 2008 and had been employed as a Customer Service Operator from 2019. The employee had a longstanding history of deep vein thrombosis (DVT), and by April 2024 was also experiencing superficial thrombophlebitis, which caused inflammation and pain.
Over the course of April 2024 to April 2025, the employee was absent from work for a total of 114 days due to her medical conditions. In response to ongoing attendance concerns, the employer indicated that she may be required to attend an independent medical examination (IME) if her attendance did not improve. The employer’s concerns centred on the potential safety risks associated with her returning to a physically demanding role following extended illness.
After a subsequent hospitalisation for DVT, the employee advised she would be unable to return to work for a further three months. The employer then commenced a show cause process. An IME later concluded that while the employee was not fit to safely perform the full duties of her role at that time, she might be able to return to modified duties within a month and potentially resume full duties following a scheduled surgery.
Despite this, the employer determined that it could not accommodate modified duties or reduced hours, noting that the role required prolonged standing on a moving platform. The employee was dismissed and subsequently lodged an unfair dismissal claim, arguing that her employer should have considered her likely future capacity and the possibility of reasonable adjustments.
Key findings
The Commission found that the medical evidence did not provide a clear or reliable basis to conclude that the employee would be able to return to her full duties in the foreseeable future. While the IME suggested a possible return to work, this assessment was conditional and dependent on the success of future surgery, making it inherently uncertain.
Commissioner Simpson accepted that the medical evidence was inconsistent and ultimately insufficient to establish that the employee would regain the capacity to perform the inherent requirements of her role. The Commission also accepted the employer’s position that the nature of the role, including prolonged standing on a moving vessel, created legitimate safety concerns.
Importantly, the Commission found that the proposed adjustments were not reasonable in the circumstances. This was due to the employer’s rostering arrangements, the operational impact on other staff, and the impracticality of modifying the role. As a result, it was determined that there were no reasonable adjustments available that would allow the employee to safely perform her duties.
On this basis, the Commission concluded that the employee could not fulfil the inherent requirements of her position and that the employer had a valid reason for dismissal. The dismissal was therefore not considered harsh, unjust or unreasonable.
Key takeaways
The key takeaways from this case are as follows:
- Employers are not expected to rely on speculative or conditional medical opinions. Where assessments are dependent on future treatment or uncertain outcomes, they may not be sufficient to support continued employment. Likewise, employers are not required to hold an employee’s role open indefinitely .
- Wile employers may need to consider reasonable adjustments in circumstances an employee returns to work ill or injured, such adjustments must be practical, effective and safe. Adjustments that would otherwise significantly disrupt business operations are unlikely to be considered reasonable.
- Following a procedurally fair process, including obtaining medical evidence and providing the employee an opportunity to respond to any proposal to terminate their employment is critical in defending dismissal decisions.
Learn more
If you would like to discuss any of the matters raised in this article, or require advice on navigating a similar situation in your workplace, please contact NRA Legal on 1800 572 679 for a confidential conversation.
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