The need for employers to obtain an independent medical assessment when considering matters relevant to the employment of an ill or injured employee was highlighted as one of the challenges of managing employees at a recent West Coast AREEA member seminar.
AREEA’s Western Australian Workplace Consulting team covered best practice approaches and lessons from recent court and tribunal decisions relating to employees with long-term medical issues.
A Fair Work Commission decision handed down 18 October serves as a timely and relevant reminder of the issues that can arise.
In the matter, Deputy President Masson dealt with an unfair dismissal application by an employee who had been dismissed because her employer believed she was unable to carry out the inherent requirements of her role as a nurse.
The nurse had been employed by the Knoxfield Medical Centre since 2009, and had been diagnosed with multiple sclerosis at the same time.
She had informed her employer of her condition.
In 2016, the employer had begun to have concerns over the employee’s capacity to carry out her role and raised these concerns in meetings with the employee. The employee offered to undergo an independent medical assessment, but the employer did not arrange for that to occur.
The employee did provide her employer with a report from her neurologist that supported her view that she was able to work safely around patients.
The employer had also raised the issue of her capacity to perform the role of a registered nurse with the industry regulator but the regulator advised that, based on the advice of the employee’s neurologist, they would take no action in the matter.
In May 2017, the issue came to a head with the employer still holding the view that the employee was unable to carry out her role. That view was based on observations of the employee by two Directors of the medical centre, who were both General Practitioners, and also on incidents reported by other staff members.
The medical centre dismissed the employee in May 2017, relying on its own view that she did not have the capacity to safely carry out her role, as well as a number of specific issues and complaints about the employee’s work performance. Those issues and complaints had not been raised with the employee until a meeting held a few days prior to her dismissal.
Decision: dismissal unfair
Deputy President Masson held that he was bound to follow the Full Bench decision in Lion Dairy and Drinks Limited v. Norman FWCFB 4218, which sets out the principles for dealing with capacity to work matters.
In that case, the Full Bench observed that “the absence of a clear finding by an appropriate medical practitioner that the employee cannot perform the inherent requirements of a job will suggest that there is not a valid reason for termination based on capacity”.
In the case at hand, while the two Directors, who were medical practitioners, had formed views about the employee’s capacity they had not actually medically reviewed her condition nor obtained independent medical advice, despite the employee offering to undergo an independent medical review.
The Deputy President found the dismissal, in as far as it related to the capacity of the employee, was unfair. The employee was awarded $4,240 as compensation.
Implications for employers
The case highlighted AREEA members need obtain an independent medical assessment when considering matters relevant to the employment of an ill or injured employee.
Further, that the management of long-term medical illness requires specific consideration and employers need to ensure the due processes are followed.
AREEA’s workplace consulting team specialise in fitness for work and unfair dismissal matters. For information or support please contact your local AREEA office.