Fair Work Commission
(FWC) has supported the Defence Department after it took the advice of its own medical specialist over that of an employee’s psychiatrist which resulted in the employee being ordered to return to her “injurious” workplace.
The Canberra Times reported
that Cammui Tunks, who was employed by the department for 15 years, recently lost an unfair dismissal case.
Tunks was dismissed in May when she failed to comply with a return to work order, citing medical advice as her reasoning.
She claimed she was afraid to return to her job due to a series of run-ins with her supervisors and due to sporadic attendance at work since 2012 due to stress leave.
The department sent Tunks to see an independent medical examiner in September 2013.
The psychiatrist, Dr. James Hundertmark, concluded that Tunks had a “phobic avoidance of the workplace”, but could resume some of her duties under a return-to-work program, The Times
“From a pragmatic perspective, it may well be appropriate to move her to a new supervisor but it is understood that there are limited opportunities for this to occur within the Department,” Hundertmark wrote.
In December 2013, there was a confrontation between Tunks and a departmental manager, which resulted in Tunks leaving the workplace and not returning since.
After being refused a long period of unpaid leave, Tunks went to consulting psychiatrist William Knox in April 2014.
“Practicality indicates that there will not be mediation on account of the power hierarchy within Defence, with your client being expected to be the one to make adjustments, no doubt while other parties feel quite supported and justified in their perspective,” Knox reportedly wrote to Tunks’ lawyers.
“My recommended treatment for your client is to remain in the care of her treating professionals and to avoid any return to the Department of Defence
,” he added. “I believe that Mrs Tunks does likely have a good prognosis providing she is able to separate from the injurious environment with the Department of Defence, and find other employment.”
Despite Knox’s conclusions, Defence ordered Tunks back to work and sacked her the following month when she still failed to attend.
In her claim, Tunks reportedly argued that the department’s return-to-work directions were unreasonable and that her bosses were failing to protect her from contact with the manager she feared.
The FWC found that under the Defence Enterprise Collective Agreement, the department was within its rights to accept the evidence of its own medical expert over that of the employee, and the Tunks’ appeal was dismissed.