Termination over psychological incapacity upheld

A former WorkSafe Victoria inspector who was diagnosed with complex PTSD had his unfair dismissal application dropped after the commission saw medical reports suggesting likely permanent incapacity.

The worker, whom HR Leader has anonymised, was terminated from employment as an inspector with WorkSafe Victoria on 8 July 2025 after 26 years in the role.

The worker gave evidence that he developed post-traumatic stress disorder (PTSD) while working on the job after suffering work-related stress, which caused “sleeplessness, loss of appetite, poor concentration, rumination of thought and recurring flashbacks” as a result of witnessing “incidents of death, suicide and severe injuries he had seen throughout his work duties”.

In his 20 February 2026 decision, Fair Work Commission commissioner Thornton ruled that WorkSafe Victoria had a valid reason to dismiss the worker because of the likely permanence of his incapacity, which was supported by medical evidence.

The worker’s trauma initially incapacitated him from work since he reported feeling unable to cope at work or home around November 2022, and began taking sporadic leave from work in mid-June 2023.

The commission found that the worker did not again attempt to return to work after 15 November 2023.

In February 2024, the worker was involved in a motorcycle accident on his farm. He submitted that after this event, he could not stop thinking about a similar incident that he was called to on the job, where a person had died at the scene from a motorbike accident, as well as other fatalities that he had attended to.

He submitted that following this event, he had horrific dreams, which interrupted his sleep, resulting in severe depression and anxiety.

On 29 April 2024, the worker was formally diagnosed with complex PTSD and lodged a workers’ compensation claim.

On 16 June 2025, WorkSafe Victoria wrote to the worker with a proposed termination action, submitting that based on medical reports, he was “unable to meet the inherent requirements of [his] role” and was “permanently unable to return to [his] position”.

On 23 June 2025, the worker responded, arguing that his employer failed to investigate the claim and selectively relied on an independently sourced medical report to support the termination decision.

On 8 July 2025, WorkSafe confirmed its termination of the worker’s employment under the grounds that he was “unfit for [his] substantive position” and had an “inability to meet the inherent requirements of [his] substantive position as inspector”.

The commissioner found that when counsel for WorkSafe Victoria asked the worker to refer to a medical report and asked him if he agreed that he was permanently unfit for the role, the worker responded saying: “Yeah, I’d agree with that 100 per cent”.

The worker agreed that he was unable to meet the inherent requirements of his substantive role at the date of his dismissal; however, he submitted that his dismissal was unfair as he was exposed to numerous traumatic workplace accidents and events.

Additionally, he submitted that he did not get the opportunity to be redeployed and that WorkSafe Victoria failed to engage him in rehabilitation and return-to-work processes, which “caused his mental capacity to diminish to the extent that he no longer had the capacity to perform his role”, contributing to the unfair nature of the dismissal.

Commissioner Thornton found that the worker’s incapacity to perform the inherent requirements of his role was a valid reason for his dismissal, rejecting the worker’s claim that his employer engineered a situation in which he would never be able to return to work and was deprived of the opportunity to resume his role under a properly devised return-to-work plan.

Thus, the commission determined that the worker’s incapacity and the likely permanence of his incapacity warranted the rejection of his unfair dismissal application.