An injured employee - conflicting medical reports on capacity - can you terminate employment?

Anna Ford

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.

The Facts

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.

Initial Outcome

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 Appeal

The Full Bench highlighted the following general principles:

Specific to the facts of this case, the Full Bench made the following observations:

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 in Parramatta and Norwest, Baulkham Hills:

Anna Ford, Senior Associate
Phone: +61 2 9859 9233
Email: aford@colemangreig.com.au

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