Worker given several chances to have assessments
The Fair Work Commission (FWC) recently dealt with a case involving a worker who contended that she was unfairly dismissed from work after failing to attend her scheduled medical appointments.
In its defense, the employer argued that the worker demonstrated her intention not to return to her work and consequently abandoned her employment. Hence, it said that no unfair dismissal occurred.
Failure to attend appointments
Around December 2021, the worker was injured at work, and the Commission said that was also the last day she attended her job. Days after, liability for the injury was accepted.
On 22 June 2022, the worker received a certificate of capacity/fitness from her treating doctor stating the worker was fit for only some type of work.
Such a certificate of capacity was provided to the employer and appeared to have persisted until the worker’s employment ceased.
The Commission noted that on several occasions, the worker failed to attend work capacity assessments with a rehabilitation provider.
On 25 August 2022, the worker obtained a medical certificate from a health service stating that “she will be unable to attend work/school” on the date.
The day after, the worker again gained a medical/attendance certificate from a health emergency service. It noted that the worker attended the emergency department but it gave no diagnosis of illness and did not certify any unfitness for work.
Following the issuance of COC, the employer made several efforts to contact the worker. It also gave an ultimatum that if the worker does not contact the employer before the close of business on 7 September 2022, the company will take further action, including terminating her employment.
On 6 September 2022, the worker sent her response to the employer’s letter stating her desire to continue her employment with the company. The worker also stated in the letter that she was unaware of the email sent by the employer.
The employer arranged another medical appointment for the worker, but the worker failed to attend either assessment.
In its submission, the employer argued that the conduct of the worker warranted her employment termination as it failed to obey the reasonable requests of the worker’s compensation insurer and the company to:
- Attend medical and other appointments arranged while she was on workers’ compensation and employed by the company
- Cooperate or communicate with eh employer concerning her obligations to return to work; and
- Return to work on multiple occasions when deemed able to do so by the workers’ compensation insurer.
Meanwhile, the worker argued that her dismissal was unfair as she did not intend to abandon her employment.
She further argued that on each occasion that a return-to-work appointment was scheduled, she was unwell and provided certificates to justify her failure to attend such meetings.
HRD previously reported about an employer’s decision to terminate a worker’s contract over his alleged rude and inappropriate behaviour during a company-scheduled medical examination.
On the other hand, the worker claimed unfair dismissal and said that the doctor assaulted him at the appointment.
After examining the case, the Commission found the worker’s dismissal as harsh, unjust, and unreasonable.
It noted that the worker, being a long-term employee of the company, factored in the result of the harshness of the dismissal, given that the worker said she commenced employment with the company in October 1999.
The Commission also noted that the worker being dismissed or at least terminated without notice was a relevant matter in deciding the case.
“While the [worker] was notified of the reason for her dismissal in plain and clear terms she was not so notified before the decision was taken to terminate her employment,” the FWC stated.
It said that the worker’s response that she wanted to continue her employment with the company seemed to have been disregarded by the employer as they subsequently issued the worker the termination letter on 19 October 2022. Hence, it weighed in favor of an unfair dismissal.