Capacity for work must be independently assessed, not assumed

29 November 2017

The Fair Work Commission (FWC) has stressed the importance of obtaining proper medical information when determining a worker’s capacity for work in its recent decision in an unfair dismissal claim.
The worker, diagnosed with multiple sclerosis in 2009, was a nurse employed by Knoxfield Medical Centre Pty Ltd. Her physical restrictions were accommodated by her employer as her condition deteriorated, however concerns about her capacity to perform her role were raised in 2016 and her employer ultimately dismissed her in May 2017, citing concerns over capacity and performance.

Whilst the worker had scope to pursue several different types of claim against her employer, she chose to lodge an unfair dismissal application. In doing so, she informed the FWC that her treating neurologist had provided a report certifying her fit to safely work around patients. She further stated that she agreed to undertake an independent medical examination at the request of her employer, however her employer failed to organise this.

She argued she was capable of fulfilling the inherent requirements of her role and moreover her employer failed to prove otherwise by obtaining an independent opinion from a relevant medical practitioner.

The employer responded that an independent medical examination was not necessary as her capacity was judged by the employer’s directors’ observations of the worker’s hand tremors and impaired gait and mobility. As both of the directors are licenced doctors, the employer argued their assessments of the worker constituted appropriate medical opinions, supporting the decision to terminate her employment.

However FWC Deputy President Ian Masson disagreed, noting that the views of the directors were not expressed as clinical diagnoses nor supported by a formal assessment of the worker, or relevant scans or tests.

Deputy President Masson however did find evidence of decline in the worker’s performance, specifically; failing to complete patient care plans and properly maintain the centre’s vaccine and medicine storage area. He refused to conclude as to whether these performance issues arose out of the worker’s medical condition.

However he did find said issues to be significant enough to warrant termination of the worker’s employment, but her employer’s failure to provide her with an opportunity to respond to the specific allegations and provide any performance warnings rendered the dismissal unjust.

The worker’s bid to be reinstated was rejected as Deputy President Masson wasn’t satisfied she was capable of returning to her former role. She was however awarded $4,240 in compensation.

Recommendations for employers

  • Consider whether the company is reasonably able to accommodate the worker’s restrictions, in which case this should occur.
  • When assessing a worker’s physical capacity, advice should be sought from an independent practitioner, the worker’s own treating practitioners and the worker themselves. 
  • Workers should be kept informed throughout the process; employers should conduct employment status meetings, issue performance warnings where appropriate and provide opportunities for workers to respond to specific allegations.
  • Employers should be mindful of their statutory obligations pursuant to fair work, health & safety and discrimination legislation. 

Hentys are experts in navigating the complex areas of workers compensation, health & safety and employment law. Please contact our team for any such assistance you require.

Logan v Knoxfield Medical Centre Pty Ltd T/A Colchester Medical Centre [2017] FWC 5378 (18 October 2017)