When an employee is absent because of an incapacity to perform duties, timing becomes important. The FW Act precludes termination for temporary absence up to 3 months. If absence extends beyond that period, it becomes a question of whether there is likely to be return to duties in short or medium term, with updated medical advice being important.

When an employer relies upon an employee's incapacity to perform the inherent requirements of their position, it is the substantive position or role of the employee that must be considered, not some modified, restricted duties, or temporary alternative position.

The phrase 'inherent requirements' directs attention to the essential features or defining characteristics of the position in question, as opposed to peripheral requirements.

An inability to perform the inherent requirements of a position will generally provide a valid reason for dismissal, but this will not invariably be so, including where dismissal is prohibited by workers compensation legislation or otherwise unlawful.

A dismissal based on incapacity to perform the inherent requirements of a position may not constitute valid reason for dismissal if the employee has capacity to perform the inherent requirements of their job.

A valid reason may exist for dismissal but the dismissal may nevertheless be harsh, unjust or unreasonable, which requires consideration of broader circumstances including the burden on the employer and consequences for the employee.

Whether a requirement is an inherent requirement should be determined according to the dictates of common sense and as a matter of objective fact rather than speculation or impression.

The substantive position or role of the employee must be considered and not some modified, restricted duties, or temporary alternative position.

An inability to perform the inherent requirements of a role will generally be a valid reason for dismissal, however this may not always be the case.

When an employer relies upon an employee's incapacity to perform the inherent requirements of their position, it is the substantive position or role of the employee that must be considered and not some modified, restricted duties or temporary alternative position.

A valid reason is one which is sound, defensible or well-founded, not capricious, fanciful, spiteful or prejudiced; inability to perform inherent requirements generally provides valid reason but may not be valid if employee has capacity to perform; where reason is based on incapacity, it is the substantive position that must be considered.

The nature of inherent requirements is that they must be an essential feature or requirement of a role; inherent requirements cannot be created by an employer for things which are not essential and must be reasonable and objectively assessed.