Can you dismiss employees who can’t fulfil their duties?
By Charles Power
That employees must engage fully with employers who make a reasonable request for information about work capacity was exemplified by a recent unfair dismissal case.
In Columbine v The GEO Group Australia Pty Ltd (2014), a corrections officer claimed she was unfairly dismissed for failing to provide medical information about her work capacity.
The employee suffered a work injury and had received workers’ compensation payments. She returned to work to perform modified duties in an administrative position. The employee was then informed that this arrangement would end and that there was no other position available in which she could work with her medical restrictions.
The employee sought to return to work as a corrections officer on reduced hours and a restricted basis. This request was supported by a medical certificate. The employer responded by indicating that it was considering terminating her employment on the grounds that she was unable to fulfil the requirements of her position as a corrections officer and inviting the employee to provide any relevant information prior to the final decision. The employee responded by claiming that she could return to work as a corrections officer on an unrestricted basis.
The employer then told her to provide:
- a medical certificate indicating she was fit to perform the role of corrections officer on an unrestricted basis;
- a report from her treating doctor as to why his opinion had changed; and
- an authority from the employee to allow the employer to correspond directly with the doctor.
The employer also advised the employee that she should accept the possibility that she may be sent for an independent medical assessment.
The employee provided the medical certificate and a brief report from her doctor, but did not provide an authority to allow the employer to correspond directly with the doctor.
The employer dismissed the employee (with payment in lieu of notice) for:
- failing to provide all of the information requested; and
- not taking reasonable steps to ensure her health and safety and that of others at work.
The Fair Work Commission ruling and observations
In relation to the employee providing the information requested by the employer, the Fair Work Commission (FWC) ruled that:
- The medical certificate met the employer’s request by stating that, “We have now found her fit [with respect to] her shoulder and hip injury, and the question of the lower back issue (an issue raised by the [WorkCover independent medical expert]) has been proven also settled by the normal lumbar spine MRI (copy attached).”
- The report supplied did not explain the basis for the doctor’s change of opinion, nor did it satisfactorily explain why the risk of further injury had diminished. In the context of the employer justifiably trying to understand the sudden turnaround in the employee’s medical condition, the report did little to assist. The employee wrote the report she wanted her doctor to send to her employer. The FWC considered that this indicated that the employee did not intend to engage with her employer to ensure it had the best information with which to make its assessment about her capacity to return to pre-injury duties. The employee did not appear to have understood the importance of the duty of care the employer had to her and her co-workers with respect to their health and safety at work.
- The employee’s failure to provide the authority requested was “unfortunate” given the employer’s legitimate need to fully understand why the employee suddenly, in the space of 2 weeks, had full work capacity after being absent from duties of over 2 years. By not allowing the employer to communicate directly with her treating doctor, and by failing to provide a reasonable explanation as to why this was not possible, the employee closed off an avenue by which the employer could ascertain her fitness for duty. According to the FWC, this again showed that the employee was not prepared to engage with the employer in taking steps to address any health and safety concerns in relation to her return to work.
The FWC went on to make the following observations:
- The employer had an obligation to the health and safety of all of its employees. Corrections officers work in pairs and provide support and assistance to each other where necessary. The employee’s capacity to do her job had implications beyond her own health and safety and extended to her co-workers and to prisoners to whom the employer owes a duty.
- The employer’s request that the employee assist her employer to be confident that her return to work would not create a health and safety risk to herself or others was not an unreasonable direction. The fulfilment of the direction would have enabled the employer to comply with its obligations under health and safety laws. The request to provide authority for the employer to correspond with her doctor was, in this context, a reasonable direction.
- The employer informed the employee that it wished to assess her fitness for work and that this was an essential part of its health and safety process. The employee knew the employer was considering terminating her employment on the grounds that she could not fulfil the inherent requirements of her position, yet she failed to engage in any meaningful way with a reasonable request that would have enabled the employer to make a proper assessment.
- The employer was entitled to make the assessment it did on the basis of the information it had. The employee did not seek more time to respond, to seek clarification of what was required or to enquire about value or usefulness of what she had provided.
- The employer was entitled to conclude that there were health and safety issues involved with a return to full-time duties, given the sudden change in the employee’s medical status as indicated by the first and second medical certificates.
- The resolution of the employee’s work capacity rested with the employee and the steps she could have taken to meet the reasonable requirements of the employer were not onerous. Yet she chose not to engage fully with the employer with respect to its requests.
- The employee did not seriously engage with her employer in resolving its concerns in respect to her health and safety on a return to work. Her own actions and lack of attention to what her employer required of her contributed to her dismissal.
- The employer had not set out on a definite path to dismiss the employee. The employer had a legitimate concern about her ability to return to her occupation and sought further information.
- Although the employer could have done more to determine the employee’s fitness for duty, the employee was obliged to provide her employer with the information it required to determine if she could undertake the inherent requirements of her position.
The FWC was slightly critical of the employer’s failure to have the employee referred for an independent medical assessment to determine her capacity to undertake the role of corrections officer, given the lack of authority to deal directly with the employee’s own doctor. The FWC also found it surprising that the employer did not set up a meeting with the employee.
Nevertheless, the FWC ruled the decision to dismiss was justifiable and reasonable given the employee’s limited engagement in providing the employer with information on which it could properly assess her fitness for work and hence her capacity to fulfil the inherent requirements of her position.
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