When it comes to employee sick leave, we are regularly asked the following two questions:
- When can an employer compel an employee to obtain a medical certificate or a more detailed medical certificate?
- What are the considerations for an employer when an injured employee is certified unfit to return to their pre-injury position?
Two cases addressed these questions last year. We have summarised the cases and decisions as follows. We have also included a snapshot of the implications.
Tawanda Gadzikwa v Australian Government Department of Human Services (the Department)  FWC 4878 Appeal:  FWCFB 7354 – December 2018 – dismissed
- MrGadzikwa went on unpaid sick leave for mental health reasons in June 2016, and did not return to work. Medical reports sent to the Department in August and September 2017 indicated that he was not fit to return to work.
- On 30 November 2017, the Department asked MrGadzikwa to advise whether he envisaged being in a position to return to work in the next two months in order to assess whether the Department would continue to grant him further unpaid leave from work.
- He was further advised that the Department would not be able to grant him unpaid personal leave indefinitely, and that if he intended to return to workhe needed to provide a medical clearance.
- MrGadzikwa did not provide the Department with a medical clearance nor did he return to work.
- On 25 January 2018, the Department advised MrGadzikwa that his absence from work was unauthorised and any further unauthorised absence might lead to termination of employment. The Department followed up for a response on multiple occasions during February 2018.
- On 15 February 2018, the Department sent MrGadzikwa a proposed notice of termination.
- On 20 February 2018, MrGadzikwa’s rehabilitation provider sent the Department a summary of a case conference between Mr Gadzikwa’s GP and others noting that Mr Gadzikwa was fit to return to work three days a week for five hours per day.
- On 23 February 2018, MrGadzikwa supplied the Department with a short medical certificate from his GP simply stating that he was fit to return to work for five hours per day, three days a week.
- On 26 February 2018, the Department advised MrGadzikwa that the certificate was inadequate and requested additional detail. No further medical report or certificate was ever provided.
- On 1 March 2018, the Department notified MrGadzikwa that his employment was terminated due to his unauthorised absence from work.
- Mr Gadzikwapursued an unfair dismissal claim seeking reinstatement.
In relation to section 387 of the Fair Work Act 2008 (FW Act), the Fair Work Commission (FWC) found:
- it was not in contest that MrGadzikwa was absent from work without authorisation and that a dismissal for absence from work was authorised by section 29 of the Public Service Act 1999 (Cth); and
- in relation to section 387 (b) and (c) of the FW Act, that MrGadzikwa had been afforded procedural fairness.
“I consider that in the present matter the reason for dismissal was plainly a valid reason. Mr Gadzikwa was absent without authorisation. He was not performing duties. The Department’s policy was to consider dismissal in cases where an employee had been absent without authorisation for five days in a twelve-month period. DHS acted in accordance with this policy. The unauthorised absences entailed non-performance of duties…. The reason for dismissal was sound, defensible and well-founded…. I appreciate that Mr Gadzikwa says that he wanted to return to work. But DHS told him what he had to do in order to return to work. He had to obtain a proper medical clearance two weeks before the proposed return date. He did not do this.”
The FWC further held that the medical clearance was not sufficient because:
- It did not specify the nature of duties MrGadzikwa was fit to perform;
- Did not specify the time for the reduced duties; and
- Did not provide any reasons for MrGadzikwa being fit to perform work.
Note: Mr Gadzikwa was dismissed for non-performance of duties under section 29(3)(c) of the PS Act, arising from his unauthorised absences. He was not dismissed for inability to perform duties because of physical or mental incapacity, which is a different ground of termination contemplated by section 29(3)(d).
- Employers can reject medical certificates that do not provide sufficientinformation to enable them to determine if the employee can safely perform their duties.
- Procedural fairness is key – there may have been a different outcome had the Department not afforded MrGadzikwa procedural fairness.
Elaina Tito v Pilbara Iron Company (Services) Pty Ltd  FWC 7469
- Ms Tito had worked at Pilbara Iron Company (Services) Pty Ltd (Rio) Robe Valley Operations as a full-time mobile plant operator driving haul trucks since September 2011.
- In July 2016, Ms Tito sustained a (further) neck injury requiring surgery. Post-surgery she returned to work but was unable to continue due to discomfort. MsTito was then certified fit for alternative duties and for an approximate 2-year period participated in three ‘return to work programs’ and successfully performed administrative duties.
- Based on medical advice, Rio concluded Ms Tito could not safely drive a haul truck and accordingly initiated a redeployment where an alternative position within its business was found and was offered to her. Ms Tito declined the position because the roster conflicted with her parental responsibilities.
- Given an alternative role had not been found and accepted, Ms Tito’s employment with Rio was terminated effective 27 August 2018.
- MsTito pursued an unfair dismissal claim on the basis that she could perform the full duties of her position subject to the completion of a graded return to work plan.
“When the dismissal related to the person’s capacity, section 387(a) required the Commission to consider and make findings as to whether, at the time of dismissal, the applicant suffered from the alleged incapacity. Those findings were to be based on both the relevant medical and other evidence before the Commission.”
The FWC ultimately concluded that:
- On balance, there was evidence before Rio that, “Ms Tito was ‘not able to safely return to her pre-injury role, andwould not be capable of doing so for the foreseeable future’”.
- Considering each of the matters specified in section 387 of the FW Act, Rio had a valid reason for dismissing Ms
- Ms Tito’s dismissal was not unjust, unreasonable or harsh.
- Employers should have a comprehensive internal policy dealing with managing ill and injured employees.
- Having thorough medical evidence is essential to managing an injured worker.
- It is essential to consider genuine redeployment options before dismissing an injured worker.
- Ongoing and clear communications with injured or ill employees is critical and will be considered by the FWC.
Take Home Message
- Seek legal advice before terminating an injured or ill employee.
- Follow internal policies – procedural fairness key in considering ‘harsh, unjust, unreasonable’ (eunfair dismissal).
- Employers can reject medical certificates that do not provide sufficientinformation enabling an organisation to properly assess protection for the employees’ health and safety and work.