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  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  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  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.