Home - What proof is needed to dismiss a worker on medical grounds?

UpdatesOct 25, 2017

What proof is needed to dismiss a worker on medical grounds?

A Medical centre was wrong to dismiss a nurse suffering from multiple sclerosis (MS) as it failed to secure an appropriate medical opinion or give her a chance to respond to allegations made about her performance, the Fair Work Commission (FWC) has found.

By Andrew Hobbs

A MEDICAL centre was wrong to dismiss a nurse suffering from multiple sclerosis (MS) as it failed to secure an appropriate medical opinion or give her a chance to respond to allegations made about her performance, the Fair Work Commission (FWC) has found.

The decision is a warning to employers to ensure they have followed the correct procedures before making a decision to dismiss an employee on medical grounds.

The nurse had worked at the Colchester Medical Centre in suburban Melbourne since April 2009, and had informed her employer of her diagnosis before she started in the role.

The centre’s management concluded at the time that she would be able to work “for some time” before the disease had any adverse effect on her ability to perform her duties, making allowances for her as her MS progressed, including the use of an electric wheelchair and additional time off.

The directors of the medical centre, who are both doctors, told the FWC they and other staff observed the nurse had developed a serious hand tremor in early 2016, and that by later in the year she was no longer able to perform the full range of duties required of someone in her role.

By April 2017, they had concluded she was experiencing issues that were “considered symptomatic of serious cognitive deterioration,” which included being unable to conduct a manual blood pressure test and disposing of vaccines within their use-by dates.

The practice manager put a series of concerns to the nurse in a meeting held on 4 May 2017, attended by representatives of the nurse’s union, the Australian Nursing and Midwifery Federation (ANMF) and the practice’s lawyers.

The FWC heard that the practice “acknowledged during the meeting that the specific details of the complaints and concerns had not been raised previously… out of their concern to support her, rather than manage her on a performance basis.”

While the ANMF wrote to the practice the next day requesting details of the complaints in order for the nurse to respond, they did not receive a reply.

The practice dismissed the nurse on 8 May due to its concerns over her capacity to safely carry out her duties and the practice’s inability to find suitable duties the nurse could reliably perform.

The practice later argued these concerns were formed in large part by the opinions of the practice directors – both experienced general practitioners.

Background medical reports

In August 2016, the practice had asked for, and was given, a report prepared by the nurse’s treating neurologist that said she “would be safe around patients” following an assessment of her balance, mobility and fine motor skills.

The FWC heard that the neurologist’s assessment did not extend to practical clinical skills, which the nurse and practice management agreed would be assessed through an independent source.

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