Does a positive RTW intention prevent an employer from dismissing a long term absent employee?

No. In Matthew Tran v East Metropolitan Health Service, the WAIRC confirmed that a 2 year absent employee's return‑to‑work intentions alone was not enough to amount to foreseeable fitness where the medical evidence points to ongoing incapacity.

Our Take

This decision reinforces that an employee’s intention or motivation to return to work is not the same as being fit to perform the inherent requirements of their role.

The Commission accepted that suspending the worker and adjusting rosters to avoid contact following serious allegations was standard and reasonable employer practice. The fact those allegations were later found to be unsubstantiated did not render those actions unfair.

What ultimately mattered was the prolonged incapacity. Despite occasional statements about wanting to return to work, the employee never did. Over nearly two years, the medical evidence remained complex and inconsistent. Significantly, the worker continued to assert full incapacity in the context of his workers’ compensation and salary continuance claims.

The Commission emphasised that the issue was not the cause of the injury, but whether dismissal for incapacity was harsh, oppressive or unjust. It was not. Employers are not required to hold roles open indefinitely or “test” capacity where the evidence points to no foreseeable return to work.

Action Steps

• Keep clear records of suspensions, alternative arrangements, medical evidence and communications.

• Stay focused on inherent requirements, rather than intentions or expressions of motivation.

• Assess medical evidence as a whole, including positions taken in workers’ compensation or income protection claims.

• Avoid indefinite delays where there is no foreseeable capacity to return.

• Ensure procedural fairness, through consultation and genuine consideration of alternatives, even if dismissal is ultimately necessary.

• Watch for inconsistencies between internal positions and external benefit applications

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