Medical report warns ongoing interaction with senior staff member would exacerbate stress and negatively impact her mental health
A worker lodged an application seeking reinstatement after being medically retired from her position, claiming she was fully fit for pre-injury duty with no work restrictions.
The employer objected that the worker's application did not comply with statutory requirements because the medical certificate she produced stated she could not work with or under the direct supervision of a particular manager who remained in that role.
The Commission found the application failed at the jurisdictional gateway because the worker applied for reinstatement to her previous specific position but produced a medical certificate confirming she remained unfit for that exact role due to the restriction about the manager.
Background and injury circumstances
The worker had been employed by the employer in a permanent position as a resource and deployment manager since late 2021. She suffered a workplace injury and developed adjustment disorder with anxious distress.
Between late March and late April 2023, the worker took a period of sick leave due to the injury and accessed a psychologist for treatment. Between late April and late May 2023, the worker accessed workers' compensation payments and continued her leave on this basis.
In early May 2023, the worker submitted a certificate of capacity stating she was fit to return to full-time work, but not with the 'same work colleague' who triggered the injury. Around May 2023, the worker commenced an alternate role in a different team of the employer at a lower grade level, though she was paid the substantive higher grade rate.
In late January 2025, the employer wrote to the worker formally notifying her of their intention to medically retire her, and the worker's treating general practitioner provided an updated medical opinion to the employer, opining that the worker was medically fit to return to her previous role, in so far as she was not directly supervised by the employee who she said triggered her injury.
In April 2025, the employer medically retired the worker. In late May 2025, the worker wrote to the employer formally requesting reinstatement to her substantive role.
In early July 2025, the employer rejected this request. The worker subsequently filed an application in the Commission seeking reinstatement.
Worker's reinstatement request and medical certificate
The worker's union wrote to the employer on her behalf, making a formal request for her to be reinstated to her position of manager, legal support and development, previously called resource and deployment manager, due to her being fully fit for pre-injury duty with no work restrictions.
The letter stated the worker was applying to be reinstated to her previous position, the position was not more advantageous than her previous position, and she had provided a certificate given by her medical practitioner advising she was fit for employment of the kind for which she was applying for reinstatement.
The letter stated the worker was seeking reinstatement to her previous position based on the medical certificate that was issued in late January 2025.
Attached to the letter was a medical report from the worker's general practitioner stating he believed the worker was medically fit to return to her pre-injury work hours and was capable of performing her role as previously undertaken.
However, the one restriction was that the worker was unable to work with or under the direct supervision of her previous senior staff member, as this individual was directly involved in the circumstances that led to her workers' compensation claim, and ongoing interaction with this person would likely exacerbate her stress and negatively impact her mental health.
The medical report also noted there were now no restrictions to the worker working with other individuals she previously had restrictions in relation to, as these restrictions had been lifted and she was able to work alongside them without issue.
The Commission noted the medical report was an attachment to an attachment to the worker's witness statement, and the medical practitioner did not give evidence to the Commission.
Employer's jurisdictional objection to application
The employer accepted that the worker was an 'injured worker' within the meaning of the legislation and that she was dismissed because she was not fit for employment due to her compensable injury.
The employer submitted the reinstatement application was expressed in unambiguous terms and was confined to a request that the worker be reinstated to the role that she held immediately prior to her dismissal. She did not seek reinstatement to any other position, nor seek employment of any other kind.
The employer noted the medical certificate significantly pre-dated the worker's dismissal by several months and was medical evidence to which the employer already had regard prior to the dismissal decision being made.
The employer submitted that it was difficult to see how a medical report that was outdated by around four months at the time of the reinstatement application, and which had been provided to the employer prior to dismissal, could ever properly satisfy the statutory requirements.
The authorities made clear that the medical certification needed to establish current fitness for work, and a historical medical certificate could not achieve that end.
The employer submitted that the fatal flaw with the medical certificate was that to satisfy the statutory requirements, it needed to certify the worker as being fit to perform the substantive role. On any objective view, it did not. The medical certificate clearly stated that the worker's fitness to return to work was restricted and conditional.
The medical certificate expressly provided that the worker could not work or interact with, or work under the supervision of, a particular colleague and manager.
There was no apparent dispute that the manager continued to be employed by the employer, and that if the worker were to be reinstated to her substantive role, she would need to interact and work with, and work under the supervision of, that same manager.
Issues regarding worker's medical certificate
The worker submitted in reply that the employer's objection regarding currency was not established. The cases provided by the employer did not mandate the currency of medical evidence pursuant to the statutory provision.
The worker took issue with the categorization of the certificate as 'historical'. The employer provided no authority for their proposition that a 'historical medical certificate' could not establish current fitness for work.
The plain words of the statutory provision did nothing more than require the worker to produce a certificate given by a medical practitioner to the effect that the worker was fit for employment of the kind for which the worker applied for reinstatement. The context of the certificate was also pertinent.
Following the provision of the certificate to the employer in January, the worker made repeated requests that she be reassessed by the employer's psychiatrist to confirm the updated medical opinion. The employer provided no substantial response to this request.
In such circumstances, it was not appropriate for the employer to raise currency objections to the certificate, when the worker went to great lengths to obtain an updated medical assessment from the employer.
Regarding content, the worker submitted the requirements were couched in two generalisations. First, the certificate must be only 'to the effect' that the worker was fit. Secondly, the certificate must certify fitness for employment 'of the kind for which the worker applied'.
The certificate stated the worker was 'medically fit to return to her pre-injury work hours' and 'capable of performing her role as previously undertaken'. The certificate clearly provided evidence 'to the effect' that the worker was fit for employment.
The worker submitted the notion that a kind of employment had been established to be far broader than the notion of a position, with legislation specifically worded to avoid the notion of more restrictive engagement in positions, but instead using the broader concept of employment of a kind.
Commission's analysis of reinstatement request
The Commission found the reinstatement letter should be read without an eye to technicality, but plainly as to what it said on its face. Given the beneficial nature of the legislation and its intention being the enhanced rehabilitation of an injured worker by their return to work, any doubt would reasonably fall to the benefit of the worker.
Unfortunately for the worker, the letter was unambiguous. It set out reinstatement to her "previous position" and indeed used that exact phrase three times. The letter named the role sought. The letter sought reinstatement to one role, and it was specific as to which one.
The Commission found the term "kind of employment" could be very broad and need not be confined to the specification of a particular position. However, confining the request to a specific position was what the worker did in the letter.
The Commission noted that by the time of the application to the employer for reinstatement, the medical certificate was nearly four months old.
The employer said this was too old to be current, as it said nothing of the state of the worker's fitness as at the date of the request. The worker said, apparently fairly, that her fitness for work had not changed, and this was not seriously challenged by the employer.
The Commission considered that the employer actually challenged this, but because of the conclusion reached, it was not necessary or appropriate to make any conclusions or conduct any further analysis of this issue.
The Commission noted the documentation, the evidence of the worker, and the way in which the matter had been conducted had proceeded on the foundational assumption that the worker was in fact fit for her previous duties, and possibly a wide range of other related work, except to the extent that she would work with or be supervised by a previous manager.
Medical certificate failed to certify fitness for position
Subject to a qualification, the Commission was satisfied that the medical report was a certificate given by a medical practitioner and that the report, if it had been unqualified, would have been sufficiently worded to be to the effect required by the statute. That qualification was significant, but unnecessary to resolve in this case.
It was that the medical report was an attachment to an attachment to the worker's witness statement. The medical practitioner did not give evidence to the Commission.
If the contents of his medical certificate were in dispute, and the employer had clearly indicated it would be if the Commission proceeded past the gateway, the evidentiary value of the medical report would have been subject to doubt.
Giving the medical report its highest value as current and as a medical report, it set out that the worker was not medically fit for the employment for which she had applied to be reinstated.
The one restriction was that the worker was unable to work with or under the direct supervision of her previous senior member.
The evidence was that the previous senior member remained a manager of the worker's previous position. The application failed at the statutory gateway.
The Commission found there was cause to be concerned that a range of matters canvassed during the hearing were left unresolved, but previous decisions of the Commission made clear that the gateway was not a discretionary question for the Commission to consider.
The Commission ordered that the application be dismissed. The Commission noted that in limiting the extract of the background, that was all that was relevant to the Commission's decision, and observed that the employer then agreed with that extract as a proper description of the background.
