Australia: Good news for employers dealing with sick and injured employees

Three recent decisions represent good news for employers managing employees who are on long term sick leave.

Organisations are often unaware of their rights to seek further information from employees about their medical condition, particularly where medical certificates provide scant detail. Further, there is considerable reluctance on the part of businesses to dismiss an employee because of a medical condition. However, these recent cases demonstrate that, provided that procedural fairness is afforded to the employee concerned, organisations may have a valid reason to either request further medical information or dismiss an employee on long term sick leave.

In the first two cases are remarkably similar and both concern locomotive drivers.

  • In Kevin Rowe v V/Line Pty Limited [2014] FWC 1437, Mr Rowe was employed as a locomotive driver for almost 44 years and was dismissed in December 2012. Mr Rowe commenced an unfair dismissal claim in relation to his termination. The employer, V/Line, submitted that the termination was not unfair since Mr Rowe had been absent from work since December 2010 as a result of suffering post-traumatic stress disorder related to a number of previous train incidents. V/Line sought and relied on medical evidence from a number of treating doctors as to Mr Rowe's condition. V/Line's Chief Medical Officer confirmed, in response to a number of questions posed by V/Line, that in his opinion Mr Rowe would never return to his pre-injury duties and that he was permanently unfit as a locomotive driver. Consequently, V/Line dismissed Mr Rowe on the basis that he was permanently unfit to discharge his duties and unfit to perform any alternative suitable employment within V/Line. In its decision, the Fair Work Commission considered that the termination was not unfair and, relevantly, held that the fact that Mr Rowe did not have the capacity to perform the duties he was employed to do and that, there was no prospect of him being able to perform his duties again, was a valid reason for dismissal.
  • In Mr Stephen Born v Aurizon [2014] FWC 22, Mr Born commenced an unfair dismissal claim against Aurizon after his employment was terminated on medical grounds. Mr Born had, at the time of dismissal, completed approximately 34 years service as a locomotive driver. In October 2011, Mr Born suffered a stroke or seizure which rendered him unable to return to work. Relying upon medical evidence, Aurizon requested Mr Born to show cause as to why his employment should not be terminated on the grounds that it appeared unlikely he would be able to perform his normal duties within a reasonable timeframe. In finding that the dismissal was not unfair, the Commission held that Mr Born was unable to perform the inherent requirements of his substantive role, because of his medical restrictions. Relevantly, the Commission noted that permitting Mr Born to return to work may have posed a risk to both Mr Born and third parties.

In the third case, Australian and International Pilots Association v Qantas Airways Ltd [2014] FCA 32, the direction by Qantas to its employee (Mr Gregory Kiernan) that he provide detailed medical evidence of his condition was held not to amount to "adverse action" within the meaning of the Fair Work Act 2009 (Cth). The employee was a pilot who provided Qantas with a medical certificate in July 2012 stating that he was suffering clinical depression and hence unfit for work for a period. In October 2012 the employee provided a further medical certificate from his treating doctor stating that the pilot was suffering a "medical condition" and would be unfit for work until January 2013. Qantas requested the employee provide the airline with a written report from his treating doctor setting out the nature of his diagnosis, prognosis and capacity to return to pre-injury duties. When the employee did not provide such information, Qantas indicated that any failure to provide the requested information would be considered as serious misconduct and may give rise to disciplinary action. The employee then commenced an adverse action claim.

In dismissing the claim, the Federal Court of Australia noted the importance of Qantas referring to and relying upon its obligations as an employer pursuant to applicable Work Health and Safety legislation, namely the requirement to ensure, as far as reasonably practicable, the health and safety of its employees. The Court noted:

"In these respects, the need for planning to enable Mr Kiernan to return to work can be seen as part of the objective Qantas had mind in satisfy those requirements. Similarly, pilots who are unfit or uncertified to fly planes posed a significant and obvious risk to the health and safety of other persons, including potential passengers. In addition, Qantas' rostering arrangements were directed, among other matters, to ensuring the health and safety of all other Qantas employees affected by the roster and the airline's passengers. The need to accommodate the absence on sick leave of skilled employees, such as flight crew members, and to plan for their future orderly return to full or part-time duties within its organization or their cessation of employment (deepening on the nature of their illness and prognosis) all bore on Qantas'[ ability to fulfil its duties under s 19(2) and (3) of the Work Health and Safety Act and its analogues"

On this basis, it was held that the threat of the possibility of disciplinary action did not constitute adverse action for the purpose of the Act.

These decisions should provide comfort to organisations feeling hamstrung in respect of their rights to deal with, manage and potentially dismiss employees on long term sick leave or employees who are not providing appropriate medical information. However, we emphasise that dealing with sick and injured employees carries an inherent risk particularly given the laws in relation to discrimination, unfair dismissal and adverse action.

Employers should where necessary refer to their obligations pursuant to applicable Work Health and Safety obligations when managing sick and injured employees. Further, employers should always seek appropriate advice as to satisfying procedural fairness requirements in effecting any dismissals.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Kemp Strang has received acknowledgements for the quality of our work in the most recent editions of Chambers & Partners, Best Lawyers and IFLR1000.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.