FWC weighs competing claims over prolonged medical leave and return-to-work processes
The Fair Work Commission (FWC) recently dealt with an unfair dismissal claim involving a worker who had been absent from her job for over two years due to medical issues.
The worker sought reinstatement to her former position, arguing that her dismissal was harsh, unjust, and unreasonable after such an extended period of medical leave.
The worker argued that she was prepared to provide the medical information her employer requested but was prevented from doing so due to financial constraints and communication difficulties.
She stated that there were periods when she did not have access to email or a convenient mailing address, suggesting that not all of her employer's correspondence reached her during her absence.
The worker had been employed with a major supermarket chain from March 2017 until September 2024, working as a delicatessen manager and later as a bakery manager.
Her employment took a turn in January 2021 when she was transferred between stores and raised concerns about food handling practices, leading to stress leave.
The situation developed in January and February 2022 when the worker experienced seizures at work. She started a period of leave in February 2022 that continued until her dismissal in September 2024.
During 2022, the worker made allegations against a store manager that were investigated and found to be unsubstantiated.
Initially, the worker provided medical evidence indicating she was fit to work for the employer but not at that particular store.
After being told her allegations were not substantiated, the medical evidence she provided indicated she was not fit to work at any store.
Over the period of the worker's absence from April 2022 until September 2024, she provided medical certificates for some periods but not all.
The latest period covered by a medical certificate was from January 2023 to March 2023. No medical certificates were provided for the last eighteen months of her employment, leaving the employer without current medical information about her condition.
The employer issued separate written requests for information on six different occasions between September 2022 and July 2023. In a letter dated September 2022, the employer asked eight specific questions, including:
"In your opinion, is [the worker] currently fit to undertake the inherent requirements of her pre-illness role as Baker Manager, including rostered hours?"
The worker did not provide any medical information about her capacity to return to work despite these requests over approximately two and a half years.
A health and well-being advisor with the employer described her attempts to obtain the required information:
"Most of the time, [the worker] did not answer my calls or otherwise respond to me. When she did respond, it was usually at or just after a deadline I set for the provision of information had passed. [The worker] would indicate that the information was forthcoming but that she needed more time."
The worker stated she could not afford to pay her treating doctor to prepare a report. The employer's correspondence stated:
"The reasonable cost of your assessment will be met by the Company on provision of your invoice." The FWC found this evidence from the worker was not satisfactory.
The worker told the employer at different times that she had misplaced the questionnaire, that information would be forthcoming, or her solicitors asked for more time, but the requested medical information was never provided.
The employer issued four show cause letters over nearly two years, starting in November 2022. The first letter stated:
"As an employee … you have an obligation to co-operate with its reasonable requests to obtain medical information relating to your return to work, and occupational health and safety matters generally."
The letters warned: "As you have failed to provide the requested medical information, [the employer] may be left with no alternative but to make a decision regarding your future employment based on the available information."
After each letter, the worker or her solicitors would request additional time, which the employer agreed to, but the requested medical information was never provided.
The employer agreed to pay treating practitioners' invoices when requested, but this did not result in the provision of the required medical assessments.
On 22 July 2024, the employer sent a final show cause letter giving the worker until 5 August 2024 to respond.
The worker did not respond by the deadline. Brief contact occurred through a store manager, but the worker said: "I cannot discuss any further. We can discuss this during a meeting with our lawyers."
On 13 August 2024, a senior manager made the decision to dismiss the worker, stating: "[The employer] requested medical information on many occasions over the course of approximately 2.5 years to ascertain [the worker's] current and future fitness for work. [The employer] did not receive any such medical information."
He noted: "There had been a pattern of stalling and asking for more time."
The FWC found the worker had been dismissed on two grounds: her prolonged absence with no capacity to work, and her failure to comply with reasonable directions to provide medical information.
The FWC noted the worker "had been absent from the workplace for more than two years" and "the latest medical information provided by [the worker] was more than 18 months old."
The FWC stated that the employer's requests were "lawful, reasonable and respectful" and that the employer "had been patient with [the worker] for a very long time."
The FWC concluded: "Having considered each of the matters specified in section 387 of the Fair Work Act, I am satisfied that the dismissal of [the worker] was not unfair." The application was dismissed.
