Doctor V Doctor

Which to accept when deciding if a worker can remain employed following an injury?

Let’s say a baker is injured outside of work playing soccer. The employee is unable to work to full capacity, or in legal terms, is “unable to perform the inherent requirements of the job”. The employee provides a medical report saying he/she is fit to perform the pre-injury duties. You, as the employer, obtain your own medical report that the employee cannot perform the duties he/she was undertaking prior to the injury.

As a result of weighing up the reports, the employer makes a decision to terminate the employee. The employee lodges an unfair dismissal case. How does the Fair Work Commission judge if the dismissal was fair or not? Is it the employer’s decision as to whether the employee is fit? Or can the Commission make its own decision? In other words, should the Commission go into and behind the medical reports to make its own decision?

There have been conflicting decisions from the Fair Work Commission on this important issue. A recent Full Bench has clarified the issue of how inherent requirements cases where there is conflicting medical evidence are to be decided. The Fair Work Commission can use its own judgement.

In a recent case involving CSL Limited, a commissioner reinstated an ill plasma receipt operator whose dismissal he ruled valid, but harsh. The operator had been off work for 38 weeks receiving a “salary continuance” under the terms of the enterprise agreement. The employer dismissed him after forming the view, based on independent medical evidence, “that you do not have the capacity to perform your pre-illness duties now or in the foreseeable future”.

The commissioner declined to delve into the medical issues as to who was right and who was wrong. The commissioner said it was entirely defensible for an employer to rely upon the medical report it had received to justify the dismissal. The employer had a valid reason to terminate the employee.

On appeal, the Full Bench reviewed the cases and held there was an obvious tension between previous cases. One was a case called Jetstar, and the other Lion Dairy.

In Jetstar, the Commission found that while the airline had a valid reason to dismiss a flight attendant because she was unable to fulfil the inherent requirements of the job, the termination was unfair because the airline relied on a “highly controversial” psychiatric diagnosis to justify it. The Commission said it was up to the commissioner to make findings as to the alleged incapacity based on the relevant medical evidence before the tribunal.

In Lion Dairy, a full bench majority said the tribunal member “erroneously” decided that an employee recovering from a skydiving accident was able to perform the inherent requirements of his position, despite medical evidence to the contrary. In reaching its decision, the Lion Dairy majority said that the Commission is not in a position to make an expert medical assessment. An employer may rely on expert advice and must resolve the conflict.

CSL decision

The Commission supported the previous decision in Jetstar. The Commission noted the two approaches and, for policy reasons, said that:

“the object of establishing a balanced framework and providing a ‘fair go all round’ seems antithetical to the notion that it is the employer who resolves any conflict in the medical assessment of an employee’s capacity…the approach advanced by the majority in Lion Dairy is inconsistent with the weight of authority and the proper construction of s387(a)… It is, with respect, plainly wrong.

“Contrary to the proposition in Lion Dairy, there is no basis to leave the resolution of any conflict in medical opinion to the employer…the Commission is frequently called upon to resolve evidentiary conflict, including the assessment of expert evidence.” 

In deciding cases of competing medical reports, the Commission is fully able to review whether the employer had a valid reason to terminate the employment. It is not simply for an employer to state that it had medical advice the employee was unable to perform the inherent requirements of the job.

In other words, the employer will have to justify why it made a decision to terminate based on medical advice received.

Lessons

Understandably, an employer is afraid that to take an injured employee back could lead to further injury. In practice, the resolution will be a conference of the practitioners by phone or face-to-face with the parties to resolve the issue of ability to perform the inherent requirements of the job. While this is not an irrational fear, listen to the medical professionals and ensure that you act in a fair manner.