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.


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.


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.


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.

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”

Related Video
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.