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[2026] FWC 740
General information, not legal advice.
Fair Work Commission
2026-03-05
Original judgment source is linked above.
s.394 - Unfair dismissal
Application for an unfair dismissal remedy - Dismissal for incapacity to perform the inherent requirements of the role - Dismissal not unfair - Application dismissed.
[1] On 17 July 2025, Ms Jodie Daunis (Ms Daunis / the Applicant) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy, alleging she was unfairly dismissed from her employment with Rivercity Ferries Pty Ltd (the Respondent) on 1 July 2025. The matter was listed for hearing 1 December 2025.
[2] The Applicant was represented by Mr Samuel O'Sullivan of the Construction, Forestry and Maritime Employees Union - The Maritime Union of Australia (the MUA). The Respondent was represented by its in-house lawyer Mr Simon Clayer of Kelsian Group Limited.
[3] The following people provided witness statements in the matter:
[4] Ms Daunis has been employed in connection with river ferries in Brisbane since June 2008. The Applicant's employment transferred from Transdev to the Respondent in November 2020 and her entitlements were carried over.
[5] Ms Daunis has been performing work as a customer service operator since 2019. This is a role where the shift is performed on the river ferry. Ms Daunis has been suffering long-term from deep vein thrombosis (DVT).
[6] Ms Daunis said she developed DVT in 2012 in her left calf. After several tests, it was identified that she had a specific gene called Factor V Leiden, which is associated with an increased risk of blood clotting. To deal with this, her treating doctor prescribed anti-coagulant medication. After dealing with the 2012 DVT and its associated effects, she did not experience any DVT related issues for the next 12 years. However, in April of 2024, she began suffering from recurrent superficial thrombophlebitis (RST). This is a blood clot that occurs in the superficial veins under the skin. It causes inflammation, pain, and redness.
[7] Ms Daunis said this did not affect her ability to work significantly until August 2024, following which Ms Daunis took many days off due to her RST, using all her accrued leave, personal leave, and some unpaid leave. Ms Daunis was referred for surgery in November 2024 but as the surgery was not covered by her insurer, Ms Daunis was put on the public waiting list. Following August 2024, including through 2025, Ms Daunis had regular absences for health reasons.
[8] On 24 February 2025, the Respondent met with Ms Daunis and a support person. Ms Daunis was informed that if her attendance did not improve, she may be required to attend an independent medical examination (IME). Ms Daunis disclosed medical details and informed the Respondent that she was waitlisted for a surgery scheduled for November 2025.
[9] On 3 March 2025, the Respondent wrote to the MUA directing Ms Daunis to attend an IME on 12 March 2025. On 11 March 2025, the MUA informed the Respondent that Ms Daunis would not attend the IME. Ms Daunis signed a consent form to provide and release medical information to an independent medical examiner.
[10] Ms Daunis agreed that throughout her employment with the Respondent she had a long-term history of absence from work due to a range of medical conditions. In the 12 months leading up to 15 April 2025, Ms Daunis was absent from work on paid and unpaid leave for 114 days. It was put to Ms Daunis that her regular absences made it difficult for the Respondent to include her in its rosters. Ms Daunis accepted that.
[11] It was put to Ms Daunis that several of her medical certificates did not explain why she was absent from work, and when she might be fit to return to work. Ms Daunis said she was unsure of how much she had to provide in terms of reasons. However, Ms Daunis said there was no follow up from the employer as to why she was taking the leave.
[12] It was put to Ms Daunis that her doctors provided conflicting medical certificates stating she was fit to work, and then stating she required extensive time off work, which made it impossible to roster Ms Daunis when the advice kept changing. Ms Daunis said in relation to a letter from Dr Hagley, she was fit medically but physically she needed that time off.
[13] It was put to Ms Daunis that Dr Hagley said she could return to work, but in a later sentence said she needed three months off work. Ms Daunis said Dr Hagley was referring to the week when she tried to come back to work and physically, she was in too much pain to be at work. Ms Daunis said she tried taking a day off and coming back. Ms Daunis said Dr Hagley wanted her to have three months off to fully heal the clots.
[14] Ms Dale said on 12 February 2025 it was brought to her attention that Ms Daunis was regularly calling in sick due to a variety of medical conditions. Ms Dale said she reviewed Ms Daunis employment and attendance records which revealed a consistent pattern of high absenteeism.
[15] Mr Rigby for the Respondent said on 12 February 2025 he was briefed by Ms Dale on the poor attendance of Ms Daunis.
[16] Ms Dale said on 20 February 2025 she received a medical certificate from Ms Daunis' GP, Dr Simone Carlotto of Pivotal Health which said Ms Daunis had been treated for several medical conditions over the past year which had resulted in her being unable to work.
[17] Ms Dale said on 24 February 2025 she attended a meeting with Ms Daunis accompanied by a support person and Ms Dale said she advised Ms Daunis that if her attendance did not improve, she may be required to attend an IME.
[18] Ms Dale advised Ms Daunis on 3 March 2025 that an IME had been scheduled for 12 March 2025. On 11 March the MUA advised the Respondent hat Ms Daunis would not attend the IME for various reasons. On 11 March Ms Daunis signed a consent form to provide and release medical information in a manner that protected her privacy.
[19] Mr Rigby said on 8 March 2025 he obtained legal advice about the IME as he was concerned with the level of risk to Ms Daunis if she was to return to her normal duties after an extended period of illness. He said it was recommended that an IME was the appropriate course of action to identify and mitigate the risks to Ms Daunis and the Respondent.
[20] Ms Dale said on 12 March she emailed a signed consent form to Sonic Health requesting a doctor speak to Ms Daunis' treating doctor. On 21 March 2025 Sonic Health advised in summary they were unable to assist without an IME.
[21] Mr Rigby said on 17 April 2025 Ms Dale told him that she had spoken to Ms Daunis who had agreed to participate in an IME.
[22] On 6 April 2025, Ms Daunis was hospitalised for two days with DVT. Ms Daunis informed the Respondent that she was hospitalised due to a clot and was unavailable for work for around a week. Following her return, Ms Daunis attended two shifts but had difficulties working while managing pain. Ms Dale said on 15 April she received a medical certificate from Dr Carlotto, covering Ms Daunis absence for the day. Ms Dale said Dr Carlotto recommended limiting Ms Daunis' work to 4 hours per shift, twice a week, with a day off in between, for the next two weeks due to the "considerable pain" she was experiencing from DVT.
[23] On 17 April 2025, Ms Daunis received medical advice to not attend work and received a referral as well as a medical certificate to 23 April 2025. Ms Dale said despite Dr Carlotto previously stating that Ms Daunis "had no specific injuries or restrictions limiting her ability to fulfil her duties, because her condition was resolved", Dr Carlotto wrote another certificate on 17 April 2025 which covered Ms Daunis being absent from work that day until 23 April 2025.
[24] On 23 April 2025, Ms Dale wrote to Ms Daunis requiring her to attend a new IME on 14 May 2025.
[25] On 24 April 2025, Ms Daunis received a medical certificate from 24 April 2025 to 25 July 2025, which she provided to the Respondent. Upon receipt of the medical certificate, Mr Rigby directed Ms Dale to cancel the appointment for the IME scheduled for 14 May 2025. Ms Dale said on 24 April 2025, she received an email from Ms Daunis which stated she had spoken to her vascular surgeon and blood specialist about her medical condition and the surgeon recommended she be off work for the next three months.
[26] Mr Rigby said on 24 April 2025, Ms Dale told him she had received an email from Ms Daunis advising that on medical grounds she was unfit for work and would not be cleared for work for the next six months.
[27] On 29 April 2025, the Respondent provided the Applicant with a show cause letter on the basis that it was concerned Ms Daunis could not perform the inherent requirements of the role. The Applicant was instructed to respond by 6 May 2025. The MUA sought and were granted an extension to respond to 9 May 2025 and provided a response requesting consideration for Ms Daunis to remain on unpaid leave before returning on restricted duties. Mr Rigby said around this time he received a call from Mr Simpson of the MUA.
[28] Mr Rigby said Mr Simpson expressed disappointment that the Respondent had issued a show cause letter, stating that instead the Respondent should continue to provide leave without pay for an extended period.
[29] Mr Rigby said he explained to Mr Simpson that the period of absences from work had already been ongoing for a considerable period, and the Respondent was seeking information to determine the likelihood of Ms Daunis returning to the workplace on full duties as the Respondent was holding her position at the time. Mr Rigby expressed that Ms Daunis' ongoing work absences were having a direct impact on the Respondent's ability to fulfil its contractual obligations to its customer and was adversely impacting other employees.
[30] Mr Rigby said on 14 May 2025 he was advised by Ms Dale that Ms Daunis had allegedly received a medical clearance to return to work on full duties from her specialist, Dr Hagley.
[31] The Applicant provided a further medical certificate from Dr Hagley providing:
"[Ms Daunis] is currently safe to return to work while on anticoagulation therapy. ... However, her functional capacity and ability to perform work duties is highly variable and her improvement cannot be accurately predicted over the next three months. I certify that Ms Daunis requires a period of three months off work from 14/05/2025 to 14/08/2025 inclusive. Her capacity to return to full duties will need to be reassessed at the end of this period."
[32] Mr Rigby said he remained concerned about the risks that returning to full duties posed to Ms Daunis and he discussed the importance with Ms Dale of obtaining an IME review of Ms Daunis' health before her returning to full duties.
[33] Ms Dale said the IME scheduled for 14 May 2025 was cancelled as Ms Daunis stated she was too unwell to attend, but did not give an explanation of what that meant. Ms Dale said she rescheduled the IME for 11 June 2025.
[34] Mr Rigby said that despite the specialist's advice Mr Simpson requested Ms Daunis remain off work until 23 July 2025, then return to work.
[35] Mr Rigby said on 27 May 2025, Ms Dale told him about a conversation she had with Ms Daunis during which Ms Daunis told her she may be able to return to work duties in the near future. Mr Rigby said based on this information he directed Ms Dale to reschedule an IME for Ms Daunis.
Independent medical examination and termination
[36] On 27 May 2025 the Respondent directed Ms Daunis to attend a rescheduled IME. In the period leading up to the examination, Ms Daunis' condition was improving. Ms Daunis attended the examination on 11 June 2025. The examination reported that Ms Daunis was not fit to perform the full inherent duties of her role at that time but may be able to return within a month with temporary modifications and potentially resume full duties following surgery in November 2025.
[37] Following the report, Ms Daunis, the MUA, and the Respondent discussed a potential staged return to work plan for Ms Daunis, commencing with a return on 23 July 2025. Ms Daunis and Mr Simpson both said that they had the impression that Mr Rigby and the Respondent were agreeable to a staged return. Ms Dale said that the Respondent considered this inconsistent with the medical certificate of 14 May 2025, which stated Ms Daunis needed three months off work to return on 14 August 2025.
[38] Mr Rigby said on 20 June 2025, he reviewed the IME report for Ms Daunis. He said amongst other observations, the IME Doctor stated that he and Ms Daunis agreed:
'She is currently incapable of undertaking safely the full inherent duties of her role'.
[39] Mr Rigby said that further, the report states:
'As standing and walking around on board the vessel is intrinsic to her role, it may not be possible to reduce the time she spends on her feet, therefore she may benefit from reduced working hours or days per week at least for a short period when she resumes work..."
[40] Mr Rigby said he considered the IME report in full, however owing to the roster system operated by the Respondent, partial duties of reduced hours per shift or similar are not practical to implement and would have a significant impact on other employees who would be required to fill the hours that Ms Daunis could not work. Additionally, as this is not a Workers' Compensation claim, the Respondent is under no obligation to provide reduced duties to Ms Daunis.
[41] Mr Rigby said the nature of Ms Daunis' work requires Customer Service Officers to remain on their feet for considerable periods of time during rostered shifts, on a platform that is constantly moving. Mr Rigby said noting that the business was not in a position to consider reduced duties, and the evidence of Ms Daunis' specialist and the IME report confirmed that no imminent return to full duties could be confirmed, as well as taking into account historical facts around Ms Daunis' attendance records in the preceding 15 months, he made the decision to consider terminating Ms Daunis' employment due to her capacity.
[42] Mr Rigby rejected the assertion in the witness statement of Ms Simpson that he was "generally agreeable to a staged return". Mr Rigby said in accordance with procedure, he consulted Mr David Hay, the Executive General Manager of the Respondent's parent company, and was approved to proceed with a show cause letter.
[43] On 25 June 2025, the Respondent provided a second show cause letter, requiring a response by 30 June 2025. Mr Rigby said on 29 June 2025 he was at a meeting with Mr Simpson about another employee, and Mr Simpson raised whether the Respondent would consider making Ms Daunis a casual employee.
[44] Mr Rigby said he responded to Mr Simpson that it was not about full time versus casual, it was related to Ms Daunis' health and the Respondent's business, specifically her ability to safely fulfil the duties of her employment, the impacts on the business and other employees.
[45] Mr Rigby said Mr Simpson asked about employment in the future if the surgical intervention was successful, and he said he informed Mr Simpson that Ms Daunis would be able to apply for a vacant role when and if that situation arose.
[46] The MUA provided a show cause response on 30 June 2025. In the response, Mr Simpson indicates the Applicant's intent to return to work with temporary modifications to her working days until her surgery in November, following the recommendations laid out in the IME report. Mr Rigby said Mr Simpson's response was considered in full, however he determined that no facts had been provided that would support Ms Daunis returning to the Respondent on full duties, and instead the letter sought to consider reduced duties for a period leading up to the time Ms Daunis would receive surgical intervention.
[47] Mr Rigby said on the back of the surgical intervention, the Respondent understood Ms Daunis would require at least another month of recuperation during which she would be totally unfit for work.
[48] Mr Rigby said he noted that neither Ms Daunis' treating doctor or the IME doctor were able to provide any guarantee that the surgical intervention would be successful. Mr Rigby accepted he did not seek a guarantee from any of the respective doctors. Ms Dale said Ms Daunis' position requires lengthy periods of time on her feet and the duties cannot be modified given the nature of the role.
[49] On 1 July 2025, the Respondent terminated Ms Daunis' employment with notice pay based on her incapacity, stating that it could not modify her duties to accommodate her medical limitations. Mr Rigby provided that due to inconsistent information between Ms Daunis, the MUA, her medical certificates, and the IME report it was difficult to form a consistent opinion regarding a safe return to work plan. Mr Rigby also said that the Respondent could not facilitate shorter shifts or less time standing and walking for the Applicant due to the nature of the ferry business. Mr Rigby accepted he did not seek to clarify the inconsistencies in the reports with Ms Daunis' doctors.
[50] It was put to Mr Rigby that a staged return to work could have for example involved working three out of five days rather than shorter shifts. Mr Rigby said this would leave him a situation where he would have to find someone to fill the other shifts as the roster line was a full-time roster line. He agreed it was a possibility.
[51] Mr Rigby said full time staff are allocated a roster line accordance with the enterprise agreement, and it is locked in. Mr Rigby said to bring more people into that roster line is impractical and would require the employment of additional casual employees at additional costs to attempt to balance that out.
[52] Ms Dale agreed split shifts are worked from 5am to 10am with a four-hour break and then a further afternoon shift. Ms Dale agreed that she did not seek to clarify inconsistencies in the medical reports with the doctors themselves. Ms Dale said that was part of the IME process.
[53] On 15 July 2025, Ms Daunis received her final pay from the Respondent with three weeks' pay in lieu of notice.
[54] On 9 September 2025, Ms Daunis received payment for additional 1 weeks' pay in lieu of notice owing due to her length of service with the Respondent.
[56] The Respondent objected to Ms Daunis relying on medical treatment or information that pertained to the period after her termination referring to prognosis and recovery, including a medical report dated 17 July 2025 from Dr Hagley, and a further report of 27 November 2025. The Respondent submitted that it could not have been aware of this information at the time of termination on 1 July 2025.
[57] The Applicant pressed the information and sought to distinguish the facts in this case from the facts in Jetstar Airways Pty Ltd v Neeteson-Lemkes, as unlike in the Jetstar Airways case there was a positive prognosis that arose prior to dismissal from the IME, and the post termination medical information confirmed the prognosis in the IME. The Applicant submitted that if the Commission was against the view that the post termination medical evidence was relevant for the purposes of consideration under s.387(a), then it should be considered for the purposes of s.387(h).
[58] The Respondent did not agree with the Applicant's interpretation of the IME which was that it was definitive about the Applicant being able to return to the workplace. The Respondent submitted the case will largely turn on that issue. The Applicant submitted that it is established that the validity of a reason for dismissal may be determined by reference to facts discovered after the dismissal, and those facts must have existed at the time of the dismissal. The Applicant submits the post termination report is relied upon to support what was a definitively positive prognosis of recovery.
[59] The Respondent submitted the Applicant is trying to turn around the principle to say that facts apparent at dismissal can be overturned by subsequent events post termination. The Respondent submitted that the IME report categorically stated that the Applicant had no capacity at the time of the report, and therefore, no capacity at the time the termination took effect. The Respondent submitted that if subsequently the Applicant had surgery and that went positively, these are facts that the Respondent was unaware of at the time of termination.
[60] The Respondent submitted it was unknown at the time of termination that the Applicant was scheduled to have surgery in November 2025. The Respondent referred to the language in the report assuming if surgery went well, there is a positive prospect the Applicant may be able to return to work. The Respondent submitted these are not definitive facts.
[61] Ms Daunis agreed with the proposition that there is no treatment that can make Factor V Leiden go away, and that it is a lifelong condition. It was put to Ms Daunis that because of her condition she will always be at risk of developing blood clots in her legs or lungs. Ms Daunis said that due to the surgery she just had, it will eliminate general clots, and being put on warfarin should stop any DVTs.
[62] Ms Daunis confirmed her recent surgery was in her lower leg. Ms Daunis said the risk of a DVT can occur in the upper leg or lungs. Ms Daunis agreed that the surgery she recently had, was to treat the previous condition in her lower legs.
[63] It was put to Ms Daunis that numerous medical authorities state that standing or sitting for long periods puts someone with her condition at a higher risk of blood clots. It was put to Ms Daunis that as her role includes long periods of standing or sitting and that this is not a good job for her because it puts her at risk. Ms Daunis said she did not believe so. Ms Daunis agreed she had been prescribed blood thinners and agreed that it had been determined she will need to take them for the rest of her life.
[64] Ms Daunis agreed that she had been advised by medical specialists that being on blood thinners increases the risk of bleeding if the skin is cut, because they interfere with the blood's ability to clot.
[65] It was put to Ms Daunis that minor cuts may bleed longer and more heavily, and small bumps cause more significant bruising or internal bleeding. It was put to Ms Daunis that working on an unstable vessel will increase her risk of cuts and bruises. Ms Daunis said having been on anticoagulants she had not had any issues with taking those medications.
[66] It was put to Ms Daunis that given her underlying genetic clotting disorder, it would have been very difficult for the Respondent to manage the risks to her health and safety. Ms Daunis said she believed it was her responsibility, and in her experience, no one had bothered to talk to her about their concerns.
[67] Ms Daunis was asked if she had spoken with doctors about how they deal with Factor V Leiden. Ms Daunis said she had not, and every person is different. Ms Daunis was asked what her doctors have said to her about how she would deal with the condition. Ms Daunis said regular blood tests, and regular updates with the haematologists. Ms Daunis was asked what update she had been given about getting on with the rest of her life. Ms Daunis said there have been no concerns.
[68] Section 387 of the Act sets out the considerations for determining if a dismissal was harsh, unjust or unreasonable:
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant."
[71] The Applicant went on to argue that she would have been able to carry out the full requirements of her role in the foreseeable future, with the latest expected return to work date being expected in November 2025, as stated in the IME report:
"She has recovered from the latter issue and has just been provided with compression stockings to assist with the former. On this basis, she should be able to return to work within the next month or so.
She may need some temporary modifications to her working days or hours for a few weeks or possibly until she has planned surgery in November. This should result in a significant improvement in her venous condition such that once recovered she will be able to resume normal working hours and duties on a sustained basis in future.
4. If temporary restrictions - an approximate timeframe for recovery?
She may achieve normal working for a couple of months until the planned surgery.
Following a successful recovery thereafter, she should be able to work normally."
[72] The Applicant emphasised that her specialist, Dr Jones, has also issued a prognosis of full recovery in his report provided to the Respondent on 17 July 2025:
"Continue current compression stockings and exercise regime
Cleared for full active duties with no work restrictions
Today's ultrasound scan shows complete resolution of her previous femoral DVT without valve damage, which is unusually favourable".
[74] The Respondent, on valid reason, expressed that in their view there was uncertainty that the Applicant could return to work meeting the full requirements of her role in the future, as this would be contingent on the success on her surgery in November 2025.
[75] The Respondent also relied on the Applicant's history of seeking further medical certificates upon expiry of the previous medical certificates as a basis for the assertion that they couldn't rely on the medical report of the Applicant's specialist or IME report.
[79] The Respondent argued that as the Applicant was not injured at work, they had no obligation to provide accommodations to the Applicant mandated by law.
[80] On the issue of procedural fairness, the Applicant submitted that while they had been notified of the reason and, in a general sense, granted an opportunity to respond prior to their termination, that the Respondent could not have properly considered her response to the final show cause letter before terminating her employment the next day. As such, the process may have been made to look like the Applicant was offered a chance to make her case, however, the decision had already been made and no response from her could have moved the dial.
[81] The Respondent submitted in the alternative that they had met their obligations by:
[82] In response to that submission, the Applicant argued that the Respondent is obligated to make reasonable accommodations under both the Disability Discrimination Act 1995 (Cth) (DDA) and Anti-discrimination Act 1991 (Qld), and that relevantly the Federal Parliament had amended the DDA to embed a positive obligation for employers to make reasonable accommodations for employees experiencing disability, injury, or illness.
[84] The Applicant also submitted that she had been serving loyally for 17 years, including following an employment transfer, and this service weighs heavily in favour of a finding that termination was harsh, unjust or unreasonable.
[85] There was a factual dispute in relation to a telephone conversation between Mr Rigby and Mr Simpson following the receiving of the IME report. Mr Simpson said in his evidence that he came away with the impression that Mr Rigby was generally agreeable to a stated return. Mr Rigby rejected that assertion and gave a very different version of the conversation. Ultimately, I have concluded the resolution of this dispute not to be of particular significance to the resolution of the case. The case turns on Ms Daunis capacity, reasonably foreseeable future capacity, and the issue of what reasonable adjustments could have been made.
[86] It was submitted for Ms Daunis in closing submissions that she does not cavil with the proposition that she did not have capacity to perform the inherent requirements of her role at the time of termination. That concession was appropriate, and I am satisfied the medical reports available to the Respondent at the time of dismissal support the conclusion that Ms Daunis could not perform the inherent requirements of her role at that time.
[87] It was submitted for Ms Daunis that the IME assessor Dr Jones opined that Ms Daunis would be able to return to her pre-injury duties within a month, or at worst following surgery in November 2025. The section in the IME report under the heading "Current Status and Symptoms" included an opinion that Ms Daunis "...should be able to return to work in the foreseeable future...". A reference was also made to a sentence under the heading "Daily Activities/Tolerances" referring to progressive improvement.
[88] It was submitted for Ms Daunis that the IME under the heading "Consideration of Duty of care Issue..." includes the following "Once she has recovered from surgery, if successful, this should enable her to return to a normal working future..."
[89] Further, under the heading "Assessment" the report includes an opinion that compression stockings should reduce symptomatic effects of pain and swelling enabling her to return to work within the next month or so.
[90] The report goes on to say Ms Daunis may benefit from reduced working days per week or hours per shift to facilitate and maintain her return to work until November when surgical treatment is planned to the superficial veins in the leg. If this is successful, this should provide an opportunity for her to attend work on a more sustained basis.
[91] It was further submitted for Ms Daunis that the final paragraph under the heading "Assessment" includes the following: 'She will require to remain on long term anticoagulant medication as she has an underlying genetic disorder. As such, there can be no absolute guarantees about the risk of recurrence of DVT's in the future, however this is as well managed as it can be and does not require any modifications to her duties or working hours. She should be fit for the full inherent duties of her role once she has recovered from planned surgery."
[92] The Respondent relies on this same paragraph to submit that given Ms Daunis medical history, and her regular absences from work and the high risk of further blood clots because of the nature of the work, the assumption in the IME report places the Respondent in an impossible position of having to manage an obvious risk to Ms Daunis' health and safety.
[93] The Respondent submitted managing the risk is further complicated by the inconsistent and contradictory medical advice received from Ms Daunis' specialist Dr Hagley. The Respondent submitted Dr Hagley's report of 14 May 2025 said the Applicant was safe to return to work, but in the next paragraph contradicts this saying Ms Daunis' functional capacity and ability to perform her duties is highly variable, and her improvement cannot be accurately predicted over the next three months, and certifies that Ms Daunis needs three months off work from 14 May to 14 August 2025. The Respondent submitted this confusing and contradictory advice made it impossible to manage its legal obligation to mitigate or manage the risk.
[94] The Respondent submitted the assessment of whether Ms Daunis would be considered fit to return to work in the foreseeable future was further complicated by her medical condition of Factor V Leiden that is not cured by surgery. The Respondent submitted the same blood thinners prescribed to manage the DVT create another risk if Ms Daunis is cut or falls. Further, the report says that Ms Daunis' condition is aggravated by gravitational hydrostatic effects from prolonged standing or walking. The Respondent submitted standing and walking around on board the ferry is intrinsic to her role.
[95] Finally, the Applicant relies on the third last paragraph of the report on page 43 of the Court Book referring to the planned surgery in November, and that this should result in a significant improvement such that once recovered she will be able to resume normal working hours and duties on a sustained basis.
[96] The Respondent pointed to the evidence that Mr Simpson suggested Ms Daunis could return to work on a casual or part time basis immediately despite the IME report saying in several places that Ms Daunis was not fit to return to work at the time of termination.
[97] The Respondent referred to the last sentence of the first paragraph on page 3 of the IME report under the heading which reads as follows: "Assuming all goes well in this respect, she should be in a position to provide a sustained improvement to work attendance thereafter." The Respondent submitted the IME made numerous assumptions about Ms Daunis returning to work based on working restricted working hours or days which Mr Rigby testified were not possible.
[98] Having considered all of the evidence and submissions I do not accept that the IME report conclusively determined that Ms Daunis could fulfil the inherent requirements of her role in the future. I am satisfied that the evidence does not support such a conclusion. I accept that while the medical evidence is inconsistent and contradictory, when considered overall as at the time of the termination it fell well short of clearly indicating Ms Daunis would be fit to return to her full duties in the foreseeable future, and instead was premised on assumptions about factors including the scheduled surgery in November 2025.
[99] It has been argued for Ms Daunis in relation to reasonable adjustments that at its highest the Respondent's case relies on supposed operational difficulties, but that the Respondent led no evidence of genuine consideration of these matters. It is submitted for Ms Daunis the Respondent could have provided Ms Daunis a period of convalescence that her condition required.
[100] The Respondent submitted Mr Rigby gave evidence as to why it was not possible to reduce Ms Daunis' working hours, meaning the Respondent could not make reasonable accommodations. The evidence is Ms Daunis works a fixed roster with only 6 split shifts over a four-week period, and there is not the flexibility in the roster to make the accommodations proposed for Ms Daunis.
[101] I have considered all of the evidence concerning the nature of the rostering arrangements on the ferries, and I accept, taking into account the nature of the working arrangements, and the impact on other staff, and cost to the Respondent in making accommodations as proposed for Ms Daunis that they are not practical or reasonable in this case, and that there was no reasonable adjustment that could have been made to Ms Daunis role to accommodate her current or future incapacity given the nature of her role. For the reasons set out above I am satisfied the Respondent had a valid reason for dismissal.
[102] Ms Daunis was notified of the reason for dismissal at the time of the dismissal and had been on notice of that reason before dismissal.
[103] It was submitted for Ms Daunis that despite Mr Simpson providing an extensive show cause response on 30 June 2025 a decision was made to move to termination shortly afterward, pointing to the decision having already been made, and nothing could have been done to change the Respondent's position. It is clear that Ms Daunis was given an opportunity to respond to the Respondent's show cause letter which advised that the Respondent was considering terminating her employment based on her lack of capacity. Ms Daunis provided a written response. I am satisfied on the basis of the evidence of Mr Rigby that the response was considered before a decision was made to move to termination.
[104] The Applicant accepts there was no refusal of a support person.
[105] The termination of employment was related to Ms Daunis' incapacity to perform her role on health grounds, and not because of unsatisfactory performance.
Size of enterprise and availability of human resource specialists
[106] The Respondent is not a small business and has internal human resources expertise. This is a neutral consideration.
[107] The Applicant submits the prognosis of full recovery, her length of service, the financial impact on her, and an initial failure to pay the full period of notice pay for a period of two months all favour a finding that the termination was harsh.
[108] The Respondent submits that the termination was not harsh given that during the period of employment with the Respondent (exclusive of time serviced with other entities in her role) was less than 5 years, of which almost half was on paid or unpaid leave.
[109] I have weighed each of the matters I am required to consider in s.387 of the Act to determine the matter. I am satisfied that the Respondent had a valid reason for dismissal. I am satisfied the process followed was not procedurally unfair. I have taken into account the impact the decision has had on Ms Daunis, and the other matters that have been submitted on her behalf in relation to the harsh impact on her. However, when all of the considerations are taken into account, overall, the dismissal was not harsh, unjust or unreasonable and therefore not unfair. As I have reached that conclusion, the application for unfair dismissal remedy is dismissed.
I will issue an order separately and concurrently with this decision to that effect.
[8] Jetstar Airways Pty Ltd v Neeteson-Lemkes [2013] FWCFB 9075.
[9] Gelagotis v Esso Australia Pty Ltd [2018] FWCFB at [110]-[111].xhibit
[10] Rode v Burwood Mitsubishi [1995] IRCA 333; (1995) 62 IR 371 at [373].
[11] Linda Duckham v The Royal Children's Hospital [2019] FWC 1612 at [54]
[12] Panazzolo v Don's Mechanical and Diesel Service [2023] FedCFam C2G 665 at [270]; Watts v Australian Postal Corporation [2014] FCA 370 at [57].
[13] J Boag & Son Brewing Pty Ltd v Button [2010] FWAFB 4022 at [22].
[14] J Boag & Son Brewing Pty Ltd v Button [2010] FWAFB 4022 at [22].
[15] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [73].
Printed by authority of the Commonwealth Government Printer
Jodie Daunis
Rivercity Ferries Pty Ltd [2026] FWC 740
(1995) 62 IR 371
(2000) 98 IR 137