Australia: Harsh, Unreasonable Or Unjust Dismissal On Medical Grounds

Last Updated: 15 July 2009
Article by David Chong and Michael Mitchell

"Harsh, unreasonable or unjust dismissal on medical grounds – onus effectively lies on large employer to show that it has acted reasonably"

Warren v Department of Education [2009] NSWIRComm 1032

1 July 2009

In Brief

  • The Industrial Commission of NSW has served notice on large organisations that they defend unfair dismissal cases purely "on the papers" at their peril.
  • The decision under the unfair dismissal provisions of the Industrial Relations Act 1996 (NSW) is indicative of the criteria likely to be considered under similar provisions in Part 3-2 of the Fair Work Act 2009 (Cth). It therefore has wide application to large employers, be they government or private.


The Applicant was continually employed as a teacher by the Department of Education of New South Wales from 19771. She had received awards for her high standard of teaching and contribution to public education.

In 2005 the Applicant was granted a transfer from a school in Ballina to another school in Byron Bay (both in northern NSW) on compassionate grounds, being her difficulty in driving a motor vehicle for longer than 15 minutes. The Principal of Byron Bay School was made aware of the Applicant's medical inability to perform some playground duties or teach sport. Accommodations were made by the School to re-rostering playground duties and classes.

In September 2006, the Applicant informed the Byron Bay Principal that she was allergic to certain resins and paints which might be present at Byron Bay School premises. The Principal ordered a Medical Assessment which found that she "should be fit for the inherent job requirements with some adjustments."

In August 2007, the Principal of the school requested a further Medical Assessment. This resulted in a report dated January 2008 which identified 5 significant restrictions on the Applicant's ability to perform the inherent requirements of her role, being:

  • inability to travel by motor vehicle for periods in excess of 20 minutes;
  • inability to drive at night;
  • inability to conduct sport lessons or playground supervision;
  • inability to supervise students on extended excursions; and
  • allergic response to resin, paint fumes and solvents with potential for anaphylactic reaction.

Nevertheless, the report concluded that the Applicant "would be capable of teaching with some adjustments".

The Department of Education directed the Applicant via telephone not to return to work for the start of the 2008 School year. The Applicant successfully appealed this suspension of her employment.

After further Workplace Assessment by an Occupational Therapist which again noted the significant restrictions on her capacity to perform her role, the Department ordered her retirement on medical grounds.

Application for reinstatement

The Applicant filed a claim in the Industrial Relations Commission of NSW pursuant to section 84 of the Industrial Relations Act 1996, seeking reinstatement to her position on the basis that her decision was "harsh, unreasonable or unjust".

It should be noted that section 385 of the Fair Work Act 2009 (Cth) also applies a regime of "Unfair Dismissal", and this is in almost identical terms to that of the NSW Industrial Relations Act, protecting against dismissals that are "harsh, unjust or unreasonable". This judgment therefore has application beyond the fairly narrow scope of cases which fall under the former Act.

Following unsuccessful conciliation, the matter proceeded to arbitration before Commissioner Cambridge.

The Arbitration

The Department of Education did not adduce oral evidence from the senior bureaucrat who made the decision to dismiss the Applicant teacher. It is not uncommon for large organisations to dispense with evidence from such senior managers, given their numerous other responsibilities. Instead, the case was essentially run "on the papers".

What may at first glance have appeared to be a relatively strong case for dismissal on medical grounds began to unravel: Counsel for the Applicant was able to point to at least one significant inconsistency between the letter of dismissal and the Medical Assessment reports, and this strengthened his complaint that the Applicant was unable to test various assertions in her letter of dismissal by reason of the absence of the decision-maker.

This complaint of prejudice was reinforced by the acknowledged fact that the teacher had not been given the opportunity to state her case directly to the decision-maker (as opposed to her immediate supervisor, the Principal of the school).

Other failings in the Department's case were also apparent:

  • Although the applicant acknowledged the significant restriction on her ability to perform her duties, the Medical Assessment report which identified them had stopped short of a finding that she was unable to perform her duties, instead finding that she could do so, "with adjustments".
  • The Department was unable to demonstrate that a risk management plan had been prepared to address the Applicant's allergy/anaphylaxis risks. The Commissioner commented adversely on this failure by an organisation that was responsible for the safety of thousands of school children in New South Wales.
  • The Department was further unable to demonstrate that it had explored other options, for example transfer to other suitable locations.

The Findings

The Commissioner found that several factors taken together led to the conclusion that the Applicant's dismissal had been "harsh, unreasonable or unjust". These were:

  1. The Applicant was not given the opportunity to put her case on dismissal directly to the decision-maker before the decision to dismiss was made;
  2. The absence of evidence from the decision-maker in turn meant that important issues raised in the letter of dismissal were unable to be tested;
  3. The letter of dismissal displayed a "crucial factual error" when it concluded from the medical assessment report that she was unable to perform the inherent requirements of her position, when the health report had actually not drawn such a conclusion;
  4. The prior action in directing the Applicant not to work was prejudicial to her (being an action normally only taken where a teacher is suspected of putting the safety of children at risk). Once that direction had been given (in circumstances where there was no justification for it), it operated to severely prejudice the Applicant in the continuing process of assessing whether she should be retired on medical grounds.

The Commissioner observed:

"Large organisations usually have structured hierarchies that devolve decision making to particular individuals. These decision makers will logically rely heavily on information and recommendations provided by others. However, if the decision maker determines something as serious as termination of employment without providing opportunity for face to face contact, he or she risks creating the appearance that they do not have the courage of their convictions. In addition, both the legal and ethical basis for the decision is open to manifest challenge."


The Department was ordered to reinstate the Applicant to her former position as soon as practicable and to remunerate the Applicant in respect to the intervening period between dismissal and reinstatement.


  • The key factor in the case was the Department's failure to adduce cogent evidence on a number of issues, even though the Applicant was the moving party in the proceedings. Without bringing the relevant decision-maker to give evidence, the onus of proof was effectively reversed on to the employer.
  • Industrial Relation tribunals will continue to expect large organisations to provide commensurate evidence of attempts to accommodate employees' medical needs and other restrictions.


1 but for a three year period in the 1980s. Nothing turned on this.

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
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 you may opt out by clicking here

    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.

    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.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    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.

    By clicking Register you state you have read and agree to our Terms and Conditions