Worker was gone for two years, prompting employer to re-assess his health
A worker recently brought his case to the Fair Work Commission (FWC), alleging that he was unjustly dismissed when he refused to attend an independent medical examination at the employer’s request.
In the latter’s defence, the worker was absent for two years, and it said it needed to investigate his fitness for work.
The worker filed a claim against his employer, an energy company. His journey began on February 22, 2021, when he assumed the role of a sales consultant, focused on selling energy plans via telephone and addressing customer inquiries.
However, things took a turn for the worse when he alleged that a co-worker subjected him to bullying over the next two months, recounting a series of distressing incidents.
In April 2021, the worker stopped working, citing personal reasons and an inability to continue working. Subsequently, he sought serious illness leave due to a "serious medical condition" preventing him from attending work for an extended period.
He then filed a workers' compensation claim, alleging that the workplace bullying that he experienced worsened his pre-existing anxiety and depression. He said it led to his absence from work, during which he received workers' compensation payments and remained incapable of performing job duties.
Employer investigated worker’s health
As a response to his claim, the employer's senior consultant for People and Culture reached out to the worker via email, expressing the management's intent to investigate the reported incident and ensuring his ability to participate in the process.
After the investigation, he requested the findings of the internal investigation regarding the workplace bullying incident.
Then, roughly two years later, around January 2023, the employer's consultant, who was responsible for injury management, contacted the worker by telephone to gain insights into his current condition and treatment.
Following this conversation, the consultant requested the completion of a fitness-for-work questionnaire for the worker’s treating practitioner to determine a potential timeline for his return to work.
After a while, the worker was asked to attend an independent medical examination (IME). In the letter, the employer made it clear that a failure to comply could result in disciplinary action, including termination of employment.
Following the scheduled IME, he sent a medical certificate that certified his incapacity to attend work. The consultant emailed him, noting his failure to attend the exam and incurring a late cancellation fee.
The email emphasised the need for clarity regarding his return to work and his prognosis. It further directed him to confirm his availability for another independent medical examination. Failure to comply, as stated, could result in disciplinary action, including termination of employment.
The employer went back and forth with the worker, but he wasn't able to comply. It then decided to terminate his employment, citing that the available medical evidence indicated he was unfit for his role, and he had failed to adhere to lawful and reasonable directions, thereby breaching his employment obligations.
Was there a valid reason to dismiss?
The FWC found that the worker's contract of employment contained a term to “comply with reasonable requests given by the employer."
It also had a specific term during the course of his employment: the [worker] “must comply with any request by us for you to undergo a medical examination to determine your fitness for work."
The FWC said it was "clearly lawful for the [employer] to direct the [worker] to attend an IME; to provide a date at which we could attend an IME in the next two months and to attend a show cause meeting."
"[He] had been absent from work for over two years. The capacity and prognosis on the medical certificates remained unchanged since April 2021," the Commission said.
"It was legitimate for the [employer], as part of its planning for the 2023/4 financial year, to enquire as to the prognosis and fitness for work of the [worker]."
The FWC said that the employer gave him a chance to present findings from his GP, but he rejected it. That's why the employer insisted on conducting an IME.
It said that the worker's argument "was unreasonable and not consistent with his obligations as an employee to comply with lawful and reasonable directions and to comply with IME requests."
Thus, it found that the employer had a valid reason to dismiss him. His case was consequently dismissed.
