Peter Norman, a maintenance technician for Lion
Dairy and Drinks Milk Limited, had been off work for around 14 months recovering from serious injuries after falling 10 metres in a skydiving accident and breaking both his legs.
Norman was dismissed by his employer in April 2015 after his boss acted upon an independent medical report stating he was no longer able to perform the inherent requirements of his position.
Upon appealing to the Fair Work Commission
, the applicant maintains that there was no valid reason for his dismissal because his own physician had cleared him to return to work in March 2015, and argued that he was denied procedural fairness.
While the doctor appointed by his employer advised that Norman was unfit to perform all the inherent requirements of his job, Norman’s own orthopaedic surgeon disagreed with this report and gave him the all-clear to resume his pre-injury employment.
Although his employer initially requested to speak to his orthopaedic surgeon, the applicant refused to provide unlimited access to his medical records, instead offering to pass on written questions to his doctor.
However, his employer chose not to follow up on this offer and instead of investigating the discrepancies any further, terminated his employment based on the advice received in the independent medical report.
“…at the present time you are unfit to perform all the inherent requirements of the job of a Mechanical Technician (Fitter) and it is not possible to say if you will improve to a level which you can undertake normal duties,” the employer-appointed doctor reported.
However, the commissioner overturned this advice, preferring the advice of Norman’s orthopaedic surgeon who stated that while the applicant had not achieved his pre-injury as at 25 March 2015 but that:
“This is rarely achieved where there has been serious injury and an extended absence from work and that, at best, a recovery to 95% - 98% is achievable,” his surgeon wrote in his clearance report.
The commission noted that the employer had failed to follow procedural fairness and should have conducted further investigations when confronted with the discrepancy of medical reports, the commission said.
Since he held the reputation of being a diligent worker and there were no issues with his performance or conduct, the commission ordered Norman to be reinstated to his position.
“I am satisfied that professional and viable working relationships can be re-established in the workplace,” the Commissioner said, noting that the applicant enjoys the support and respect of his co-workers.
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An employer who dismissed a man after deciding the injuries he suffered in a skydiving accident would prevent him from doing his job has lost an unfair dismissal case and been ordered to give the employee his job back.