- The recent decision in CSL Limited T/A CSL Behring v Papaioannou  FWCFB 1005 has resolved conflicting authority in unfair dismissal proceedings where there is a divergence of medical opinion.
- In an unfair dismissal application, the Fair Work Commission (FWC) will determine the capacity of the employee based on the evidence.
- The FWC can look behind an employer’s views and decision making process
Terminating the employment of an injured employee is notoriously fraught with legal risk. Amongst other things, the employer must establish that the employee cannot perform the inherent requirements of his or her position. This is often not straightforward, and will frequently involve different medical assessments. Not all doctors see eye to eye.
The recent decision of the Full Bench of the Fair Work Commission (‘FWC’) in CSL Limited T/A CSL Behring v Papaioannou  FWCFB 1005 has clarified the role of the FWC in unfair dismissal proceedings where there is a divergence of medical opinion.
The facts are not unusual. The employee, Mr Papaioannou, was suffering from a medical condition and had been off work for almost nine months. At the time of his dismissal, he could not perform his pre-injury duties.