Employer argues worker hasn't 'completely recovered' yet
The New South Wales Industrial Commission (NSWIRComm) recently dealt with a case involving a worker ordering reinstatement of her previous work.
In its defence, the employer contended that the worker was still unfit for her former role in the company. Hence, dismissing the worker’s application for reinstatement.
Worker still ‘unfit’ for work
Around 2011, the worker commenced employment for the company but began to struggle with her job and became completely unable to work in 2015.
The worker claimed that her injuries were caused by her line of work and that her claim for workers’ compensation was accepted.
On 17 June 2018, the worker’s employment was terminated because of medical grounds, specifically based on the opinion of the worker’s treating doctors that the worker would never completely recover to perform the inherent requirements of her former role.
Almost two years later, the worker wrote to the employer seeking to be reinstated to her former role as a quality coordinator.
Attached to that letter was a certificate from the worker’s treating psychiatrist and her general practitioner which stated that the worker was already fit to resume normal duty.
The employer then replied that, at such a stage, they do not have sufficient evidence to indicate that the worker will be able to resume her former role.
Over the next 12 months, the employer and the worker’s treating medical practitioners communicated as the employer sought further details of the worker’s recovery.
However, on 29 March 2021, the employer wrote to the worker stating that the company was not satisfied that the worker will be fit for the “inherent requirements of the role and therefore it has decided to decline her request for reinstatement into her former role as a Quality Assurance Business Partner.”
The employer argued that the certificates provided by the worker did not amount to evidence to the effect that the worker was fit for employment. Hence, the worker filed an application to the Commission seeking reinstatement and compensation.
The Fair Work Commission (FWC) recently dealt with 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.
Commission’s decision
After examining the case, the Commission was satisfied that the worker was fit for her former role. Hence, ordered her reinstatement as a Quality Assurance Partner.
While it is true that the worker’s attending psychiatrist provided answers which do not indicate the worker’s complete recovery, the FWC noted that the worker was still fit to resume her normal duty.
“In balancing the level of the applicant’s [worker’s] recovery against the capacity of the applicant [worker] to perform the functions of the Employment, [the worker’s attending psychiatrist] opinion was that the applicant’s [worker’s] recovery was sufficient for her to perform the Employment,” the Commission stated.
However, the Commission found it inappropriate to make an order for remuneration because the worker failed to provide evidence that she sought any employment, other than the employment with the company, following her resignation from her part-time role.
