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UpdatesOct 14, 2014

Can you dismiss employees who can’t fulfil their duties?

Today, we explore a recent case which looks at the other side of things – specifically, what are employees’ obligations, and what can you do if they don’t meet them?

By Charles Power

[Ed Note: Recently we looked at when you can request medical information from employees. The bulletin focused on the obligations and restrictions on you, as an employer.

Today, we explore a recent case which looks at the other side of things – specifically, what are employees’ obligations, and what can you do if they don’t meet them?

As Charles Power details below, this recent Fair Work Commission ruling indicates that employees must engage fully with employers who make a reasonable request for information about the employee’s capacity to fulfil their duties without compromising their own health and safety, or the health and safety of other employees.

But first…

Before you dismiss an employee for poor performance at work, you should allow them the opportunity to rectify the issue. Poor work performance will rarely justify immediate dismissal.

There is a specific process you should follow to manage an underperforming employee before you dismiss them.

Until next time…]

Case Law: Dismissing an employee for failing to provide medical information

That employees must engage fully with employers who make a reasonable request for information about work capacity was exemplified by a recent unfair dismissal case.

In Columbine v The GEO Group Australia Pty Ltd (2014), a corrections officer claimed she was unfairly dismissed for failing to provide medical information about her work capacity.

The Background

The employee suffered a work injury and had received workers’ compensation payments. She returned to work to perform modified duties in an administrative position. The employee was then informed that this arrangement would end and that there was no other position available in which she could work with her medical restrictions.

The employee sought to return to work as a corrections officer on reduced hours and a restricted basis. This request was supported by a medical certificate. The employer responded by indicating that it was considering terminating her employment on the grounds that she was unable to fulfil the requirements of her position as a corrections officer and inviting the employee to provide any relevant information prior to the final decision. The employee responded by claiming that she could return to work as a corrections officer on an unrestricted basis.

The employer then told her to provide:

The employer also advised the employee that she should accept the possibility that she may be sent for an independent medical assessment.

The employee provided the medical certificate and a brief report from her doctor, but did not provide an authority to allow the employer to correspond directly with the doctor.

The employer dismissed the employee (with payment in lieu of notice) for:

The Fair Work Commission ruling and observations

In relation to the employee providing the information requested by the employer, the Fair Work Commission (FWC) ruled that:

The FWC went on to make the following observations:

The FWC was slightly critical of the employer’s failure to have the employee referred for an independent medical assessment to determine her capacity to undertake the role of corrections officer, given the lack of authority to deal directly with the employee’s own doctor. The FWC also found it surprising that the employer did not set up a meeting with the employee.

Nevertheless, the FWC ruled the decision to dismiss was justifiable and reasonable given the employee’s limited engagement in providing the employer with information on which it could properly assess her fitness for work and hence her capacity to fulfil the inherent requirements of her position.

Regards,
Charles Power
Editor-in-Chief

Employment Law Practical Handbook

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