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Fit or unfit for work – recent Fair Work Commission (“FWC”) decisions

Managing injured or ill workers is fraught with practical difficulties and legal risks principally due to the multitude of different laws that regulate the area.  Where termination of employment is under consideration, the employer will need to establish that the employee is unable to perform the inherent requirements of the position and no reasonable adjustments can be made.

This process may involve different views expressed by an employee, their general practitioner, treating specialist(s) and independent medical assessment(s) as to an employee’s capacity and these views may change over time.  Medical opinions vary as to the seriousness of a medical condition and its impact upon an employee’s capacity along with different views on the amount of leave an employee requires before returning to their position.

In the recent unfair dismissal decision of CSL limited T/A CSL Behring v Papaioannou [2018] FWCFB 1005, the Full Bench of the Fair Work Commission (FWC) decided in an appeal decision that the correct approach is for the FWC to form its own independent assessment of the medical evidence to determine an employee’s capacity for work at the time of the dismissal.  In other words, it is the FWC’s role to determine whether there is a valid reason for dismissal, not whether the employer believes on reasonable grounds that there is a valid reason for dismissal.  Prior to this decision, there were conflicting authorities on this issue.

Mr Papaioannou was a plasma receipt operator, who had experienced an anxiety disorder in conjunction with the recurrence of a gastric condition and was off work for a number of months before CSL arranged an independent medical assessment.  After receipt of that independent medical assessment, CSL terminated his employment since the report stated that his prognosis was uncertain and the independent medical specialist was cautiously hopeful that Mr Papaioannou could return to work within 12 to 24 months.  This medical opinion conflicted with the medical evidence of his treating psychiatrist who considered it likely he could return to work within 6 months.  CSL relied upon the independent medical assessment and dismissed Mr Papaioannou, who had already been off work for ten months.

The FWC determined that it must make its own independent assessment of the medical evidence in relation to:

  • whether the employee suffers from the incapacity;
  • whether the employee can perform the inherent requirements of the job; and
  • whether the employee is likely to recover (and if so when).

As a final note, after the appeal decision when Mr Papaioannou’s unfair dismissal case was re-heard by Commissioner Platt in July (2018 [2018] FWC 3908), it was determined that while there was a valid reason for dismissal related to his capacity, the dismissal was harsh, unjust or unreasonable.  This was because the FWC exercised its discretion to consider other relevant matters (s.387(h) of the Fair Work Act 2009).  The FWC considered it was unfair that the dismissal prevented Mr Papaioannou from accessing benefits under a salary continuance plan which was provided by his enterprise agreement and had another 20 weeks to run.  Mr Papaioannou was reinstated since he was fit for work effective March 2018 and CSL was required to compensate him for the 20 week payment that he would have received under the salary continuance plan.

In another recent decision, Hyde v Serco Australia [2018] FWC 2465 the FWC clarified that the FWC must only consider the medical evidence that was in existence at the time the decision was made to dismiss the employee.  In this instance Mr Hyde was offered the opportunity to obtain a further medical report before the employer made a decision about his capacity, but Mr Hyde elected not to do so and then provided a late conflicting report after his employment had ended.  The FWC determined that the late report was not relevant to determining the validity of the dismissal.

Implications of these recent decisions are that, in addition to ensuring other laws are not contravened (including laws relating to temporary absence) when deciding to terminate the employment of an injured or ill worker:

  • employers must exercise considerable caution when deciding to prefer one medical view over another medical view. When reconciling different medical opinions, relevant factors will include doctors’ relative qualifications and specialisations (including whether the right specialist is consulted), the history of treating the employee and information provided to the doctor in relation to the inherent requirements of the position; and
  • employers ought to consider whether dismissal will have the effect of denying the employee any benefits under a salary continuance scheme.