An injured employee - conflicting medical reports on capacity - can you terminate employment?
The Full Bench of the Fair Work Commission recently dealt with this situation in the case of Lion Dairy and Drinks Milk Ltd v Peter Norman.
Mr Norman was employed by Lion Diary as a Maintenance Fitter. He had had a skydiving accident which resulted in significant injuries, after which Lion Dairy engaged Dr Graham, a Specialist Occupational Physician, to provide a medical assessment of Mr Norman and recommendations as to his ongoing capacity to perform the inherent requirements of his position. Dr Graham concluded that it was unlikely that Mr Norman would be able to perform these requirements in the near future however, Mr Norman's treating Orthopaedic Surgeon, Professor Jaarsma, provided him with a clearance to return to work.
Lion Dairy provided Professor Jaarsma's clearance to Dr Graham - who advised his opinion remained unchanged, leaving Lion Diary with two conflicting medical opinions.
Lion Dairy opted to rely on the opinion of Dr Graham, and terminated Mr Norman's employment on the grounds that he was no longer able to perform the inherent requirements of his role.
Deputy President Bartel held that Lion Dairy's decision to terminate Mr Norman's employment was unfair and that he should be reinstated and paid remuneration he'd lost as a result of his dismissal.
Lion Diary appealed Deputy President Bartel's decision to the Full Bench to make a determination.
The Full Bench highlighted the following general principles:
- In capacity cases the employer is usually required to take on board an expert opinion or opinions - they shouldn't make an independent assessment of what is essentially a medical question
- The existence of a valid reason for termination based on capacity depends on whether the reason was sound, defensible and well-founded - not capricious, fanciful, spiteful or prejudiced;
- It's appropriate to consider medical assessments that relate to the capacity of the employee to perform the full duties of the position
- It's also appropriate to take into account whether reasonable adjustments may be made to a person's role in order to accommodate any current or future incapacity but, this relates to capacity to perform the substantive position, not a modified or restricted role to accommodate the employee's injury
- The absence of a clear finding by an appropriate medical practitioner that the employee can't perform the inherent requirements of the job will suggest that there is not a valid reason for termination based on capacity
- A decision based on the existence of a medical opinion that an employee can't perform the inherent requirements of a job suggests a valid reason because such a decision is sound, defensible and well-founded.
Specific to the facts of this case, the Full Bench made the following observations:
- "Professor Jaarsma was Mr Norman's treating surgeon. His advice related to Mr Norman's recovery from the injury he sustained and the surgery performed. He is not an occupational physician. He made no occupational assessment of Mr Norman. He was not given a copy of the job description and paid no regard to the job requirements_"
- "Dr Graham, an independent occupational physician was provided with details of the job. He was asked whether, in his assessment, Mr Norman could perform the inherent requirement of the role"
- Further, "After Norman produced a medical certificate from Professor Jaarsma_ Lion Diary requested that Dr Graham review his opinion. Dr Graham confirmed his view and assumed that the medical certificate related to recovery from the injury, not the different question of ability to perform the inherent requirements of the job"
- "An employer is entitled, and expected, to rely on expert assessments. If there is some apparent conflict in medical opinions it will usually be incumbent on the employer to resolve that conflict. In this case the employer asked the occupational physician, Dr Graham, to conduct a reassessment with the benefit of Professor Jaarsma's medical certificate. Dr Graham confirmed his view that Mr Norman is unlikely to be able to perform the inherent requirements of the role in the near future"
Outcome of the Appeal
The decision to terminate was in fact fair.
Lion Diary had a valid reason to terminate Mr Norman's employment - that is, its decision was based on medical advice and therefore the reason relied upon by Lion Dairy was sound, defensible and well-founded.
These situations are always tricky to deal with - so ideally gather all information available, and preferably seek legal advice before making a final decision and taking any action. If you need assistance dealing with this sort of situation or something similar, please do not hesitate to contact our Employment Law specialists.
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