In a recent decision the Fair Work Commission found that WorkSafe Victoria fairly dismissed a workplace health and safety inspector who suffered from post-traumatic stress disorder (PTSD) and was unable to work.
The Facts
The employee was a workplace health and safety inspector for WorkSafe Victoria for 26 years until his dismissal on 8 July 2025.
Between June 2022 and November 2023 the employee had some periods of extended leave followed by unsuccessful attempts to return to work. On 15 November 2023 when attempting another return to work, he was told to not attend at work as another complaint was made about his conduct.
In January 2024 he made an appointment with his doctor to discuss returning to work, but before he could return, he had a motorbike accident on his farm. Although not injured, he began having flashbacks to an investigation in his role as a workplace investigator where a person had died at the scene from a motorbike accident. From that point he suffered severe depression and anxiety.
He did not attempt to return to work and began treatment with a psychologist who diagnosed complex PTSD.
In June 2024, the employer obtained a report from a psychiatrist that the employee had no current work capacity either in his pre-injury duties at his usual workplace or a different workplace.
In July 2024 the employee obtained a report from his psychologist that he had no current capacity to return to his pre-injury role but could attempt to resume his pre-injury role if a well-devised return-to-work program was in place.
In November 2024, a general practitioner reported that the employee was unable to work at present, and it was unclear when he would be able to return to work.
In May 2025 the employer obtained another report from a psychiatrist, Dr Doyle, stating that the employee was unfit for work and quite probably unfit permanently for his previous role, due to the likelihood of re-traumatisation through exposure to traumatic material, even if he was removed from the inspector’s role and was only reviewing administrative paperwork. A copy of the report was provided to the employee.
Before the employer notified its decision to terminate the employment, the employee was provided with an opportunity to respond to the proposed reasons for dismissal and the medical report.
He applied for unfair dismissal.
The Hearing
In the hearing the employee admitted he was unfit to return to the position, but alleged the employer had “engineered a situation in which [he] would never be able to return to work, as he was deprived of the opportunity to attempt to resume his pre-injury role under a properly devised return-to-work plan.”
The Decision
The Commissioner dismissed the employee’s application, finding that:
- The employee’s incapacity to perform the inherent requirements of his job was a valid reason for termination from employment, and indeed the employee had admitted in the hearing that he was “100%” unfit to return to work.
- There was no evidence that he had capacity to engage in rehabilitation from at least November 2023, and before then he had attempted and failed to return on a number of occasions.
- The medical evidence was consistent that he was unfit for his role as inspector.
- It was only necessary to consider his capacity to perform the inherent requirements of his role as an inspector. It was that position that must be considered and not an alternative position.
- The employer’s dismissal process was fair. Although he should have been given more than 1 week to respond to the reason for dismissal, he did not request an extension, and he was able to provide a detailed written response.
Implications
The case is a reminder that in situations involving potential employment termination for medical incapacity:
- The employer’s decision should be based on clear medical evidence,
- The employee should be given a genuine opportunity to respond, and
- It is only necessary for the employer to consider an employee’s capacity to perform the inherent requirements of the employee’s substantive role, and not an alternative position.
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