Australia: High expectations set for return to work of injured worker

Last Updated: 29 March 2016
Article by Dominique Lamb

Employers must exercise caution when sending their employees for a medical assessment, as a recent case has brought to light the consequences of dismissing an employee on these grounds.

In the case of Norman v Lion Dairy and Drinks Limited[2016] FWC 840, an employee who suffered from a serious skydiving accident was asked to seek medical clearance on their return to work.

According to the evidence, the Maintenance Technician fractured both femurs and suffered multiple facial fractures in February 2014. After taking just over a year off work to recover, the employee sought to return to his job, but was dismissed a month later based on medical evidence that the employee was unable to safely perform his pre-injury duties.

Valid Reason for Dismissal?

For a reason to be valid it must relate to the capacity or conduct of the person, including the effect of the person's capacity or conduct on the safety and welfare of others. Here, the Commission was required to consider whether (at the time of dismissal) the employee was capable of performing the inherent requirements of his job and if not, whether he would be capable at some point in the future.

The report, which was produced by the company appointed Doctor, found the employee was "unfit to perform all the inherent requirements of the job". As such, it was difficult to determine whether he would be capable of performing these duties in the near future.

However, the technician argued that there was no valid reason for his dismissal based on a second medical assessment from an orthopaedic surgeon. Accordingly his Doctor amended the employee's capacity assessment to reflect the fact that he was no longer a danger to himself or his environment, and there was no further risk of him aggravating the healing process.

The surgeon also gave evidence that the degenerative changes in the employee's knees were commonly found in labourers of his age. In her view, the employee was still recovering from a serious injury and thus a level discomfort is to be expected in the performance of his job. Ultimately, there was no barrier preventing the applicant from returning to work, which meant there was no valid reason for his dismissal.

Decision

The Fair Work Commission ruled in favour of the sacked employee and held that the employer did not have a valid reason for terminating their contract. Based on the evidence presented at trial, the company Doctor at first instance focused only on the worker's physiological changes and failed to consider the state of his injuries.

It was also relevant that the worker had obtained casual employment with two other businesses, of which both had commended the employee for fulfilling his duties without any issues. This suggested that the applicant was capable of, and did in fact, continue to improve after his medical assessment. In any case, the employer could have developed a reintegration program allowing the employee to gradually return to his full duties. On this basis, Deputy President Karen Bartel was satisfied that the worker could perform the requirements of his role and ordered for the employee to be reinstated.

Procedural fairness

The employee also argued that he was denied procedural fairnessas he was led to believe that the employer would arrange a further medical assessment in light of the apparent conflict. Instead, the company sought a second report from their doctor, which was identified as a clear breach of procedural fairness.

In addition to this, the employee alleged he was given insufficient time to respond to the reports and to otherwise show cause as to why his employment should not be terminated. An opportunity to respond to the reasons for dismissal must be a fair and adequate opportunity. As stated in Gibson v Bosmac Pty Ltd(1995) 60 IR, "an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence." Instead, the employer advised the Applicant that the meeting was to consider "feedback from the Doctor" and discuss "the way forward". This was insufficient notice to convey that this meeting was intended as a show cause meeting.

Deputy President Bartel concluded that although the Applicant was notified of the reasons for his dismissal, he was not given a reasonable opportunity to respond to those reasons.

Remedies

The Applicant sought reinstatement to the position he had held for six years prior to his dismissal. The Respondent however opposed reinstatement on three principal grounds:

  1. The Commission had no evidence that the Applicant had the capacity to perform the inherent requirements of his position.
  2. The Applicant's position was filled in October 2015, six months after the Applicant's termination.
  3. There has been a loss of trust and confidence in the Applicant by his line Supervisor and line Manager.

Deputy President Bartel was satisfied that a professional and viable working relationship could be re-established and that any discomfort between members of staff would be merely short-lived. Further, there was no evidence misconduct on the part of the employee which reduces the risk that trust and confidence has or will be lost.

The Applicant was ordered to be reinstated, and an order for lost remuneration of $13 043 was made.

Implications

This case is a timely reminder that employers must exercise a high degree of caution when managing ill and injured workers, and the process that is followed to establish the worker's incapacity to complete inherent role requirements. The worker should remain informed and consulted during the process to ensure they are provided with an adequate opportunity to respond and defend their continuity of employment with the business.

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.

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