Sage counsel for the Council

16 June 2017

Boroondara City Council has been ordered to pay a terminated former employee almost $8 000 following their decision to ignore a doctor’s plan to conduct a case conference without appropriate justification.

Prior Events

Following a workplace investigation into allegations of bullying at the hands of his manager, the employee had taken leave, citing, by virtue of a doctor’s certificate, psychological incapacity.

During the employee’s period of absence, the Boroondara City Council had approached his doctor and made enquiries as to his capacity in future. The doctor indicated to Boroondara City Council that although the employee was likely to recover in due course, he would require adequate resolution of his workplace issues. This would include having the employee report to a different manager, a transfer to another team or a case conference. Until this occurred, it would be necessary for the employee to perform light duties, or have his hours reduced, and gradually work towards a full return.

Upon the employee’s return, the workplace investigation revealed that the employee had himself engaged in offensive conduct. As a result, Boroondara City Council issued a written warning to him for unsatisfactory performance.

The employee, however, refused to attend any performance improvement meetings on the basis that his earlier allegations of bullying hadn’t been adequately resolved. The employee’s decision not to attend performance improvement meetings ultimately led to his dismissal.

Unfair Dismissal

The employee submitted to the Fair Work Commission that he had been unfairly dismissed as Boroondara City Council had failed make suitable adjustments to his performance management, despite his doctor’s recommendations.

In making the determination, the Commissioner held that Boroondara City Council were aware that a full return to work would have been detrimental to the well-being of the employee, and that their failure to adopt the recommendations of the doctor without adequate justification indicated that the employee had indeed been unfairly dismissed.

The Commissioner found that the doctor’s recommendations would have allowed a return to work that was not only entirely workable, but was “perfectly reasonable” in achieving that end.

Given that in the circumstances no valid reason had been given for the employee’s dismissal, and that statutory reinstatement would be inappropriate, the Commissioner ordered that Boroondara City Council pay the employee six weeks’ pay in compensation.

This decision highlights the need for employers to take into account the counsel of doctors and other expert opinions. Where an employer feels it is unreasonable or unworkable to adopt these opinions, the employer must be prepared to provide adequate justification for this