Employees who fail to fully co-operate with their employer'
s requests to supply information about their ability to perform
their role may expose themselves to being dismissed, based on a
recent decision of the Fair Work Commission in Columbine v The
GEO Group Australia Pty Ltd  FWC 6604.
Ms Nerolie Columbine ("the Plaintiff") was a
correctional officer engaged by The GEO Group Australia Pty Ltd
("GEO"). In September of 2011, she suffered a second work
related injury and was assigned suitable duties with GEO in a
full-time administrative position. She worked in this position for
two years. In March 2014, the Plaintiff was notified that the
administrative position was going to expire and no additional
positions were available in which she could work, given her medical
GEO informed the Plaintiff it was contemplating ending her
employment on account of her inability to satisfy the inherent
requirements of her correctional officer position. The Plaintiff
was subsequently asked to supply GEO pertinent information it ought
to consider before making its decision.
The Plaintiff advised GEO by email that she had received the all
clear from her doctor to resume her pre-injury duties. Given the
quick turnaround in her medical outlook, GEO requested a medical
certificate signifying her suitability to execute the correctional
officer role, a report about the sudden variation of her capacity
in the opinion of the Paintiff's GP and an authority from the
Plaintiff permitting direct correspondence between GEO and her
The Plaintiff supplied both the medical certificate and a
report, however failed to provide the authority, as requested by
GEO. Given the Plaintiff's manifest unwillingness to comply
with the requirements of GEO, it chose to terminate her
Commissioner Bissett held the termination of the Plaintiff was
not harsh, unjust or unreasonable. The decision supports an
obligation on employees to engage wholly with the reasonable
requests of employers for information concerning their capacity to
fulfil their duties.
In her reasoning, Commissioner Bissett considered the
Whilst the Plaintiff did tender a report, in the context of GEO
striving to ascertain the reason for the sudden turnaround in her
capacity, the absence of an opinion about this topic did little to
The Plaintiff's return to work needed to be controlled
ensuring no risk to the Plaintiff, co-workers or prisoners of the
Fulham Correctional Facility. GEO had an obligatory duty of care
and it was appropriate to ensure it continued to uphold this duty.
It was therefore salient an authority was not provided by the
Plaintiff to contact her doctor;
The entirety of the Plaintiff's actions manifested a
reluctance to participate with GEO in measures to address relevant
health and safety concerns;
The Plaintiff was made aware of GEO's contemplation of
terminating her employment and had ample and adequate time to
Employers can be encouraged by this decision because it
demonstrates that Courts and Commissions acknowledge the onerous
obligations on employers to ensure the work, health and safety of
employees. Employers can (and should ) confidently request medical
information where there is doubt about an employee's ability to
perform the role. Often, this will take the form of an independent
medical report but sometimes, it is appropriate to obtain
information from the employee's treating doctor.
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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”
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).