Workers on long term sick leave can be terminated

termination-notice

A few weeks ago, a hefty discussion took place in response to some comments made by ‘@Help Me’, a worker who unfortunately (allegedly) suffered a psychological injury as a consequence of her employment being terminated after she had to take prolonged time off to care for her terminally ill husband. In injured worker ‘Jo’s’ response to ‘Help Me’ s/he stated the essence of this article: the simple fact is your employment was terminated because you were taking too much time off work ….”. In a nutshell, employers may have a valid reason to dismiss / terminate a worker on long term sick leave.

“Help Me’s” case is not unique. We have received many questions from injured/ill workers in relation to being (unfairly) terminated. In many such cases, it is the injured worker’s employer who made the ‘decision’ that the injured or ill worker can/could not return to work, even though the injured or ill worker’s own treating doctor had issued a certificate of capacity (with some restrictions). In other cases, the injured workers have appealed such terminations, arguing that they are still capable of undertaking the “inherent requirements” of their job, but have had their cases dismissed by the FWC, the IRC etc. who preferred the evidence of a single ‘independent’ medical assessment opinion over the injured/ill worker’s own treating doctors. Many such workers have been terminated, and what’s worse, are finding it impossible to find a new job, because of such an adverse Decision (e.g IRC).

Workers on long term sick leave can be dismissed

The following 3 recent Fair Work decisions highlight that employers may terminate workers who are on long term sick leave, provided that procedural fairness is afforded to the worker concerned. Employers may also have a valid reason to request further medical information particularly where medical certificates provide scant details.

Fair Work Case 1: Kevin Rowe v V/Line Pty Limited [2014] FWC 1437

In this case,  the worker (Mr Rowe) was employed as a locomotive (train) driver for about 44 years. He was terminated in December 2012, after having been absent from work since December 2010 as a result of suffering post-traumatic stress disorder (PTSD)  related to a number of previous train incidents

Mr Rowe (the worker) lodged an unfair dismissal claim. However his employer ( V/Line) argued that the worker’s termination was not unfair since the worker  had been absent from work since December 2010 as a result of suffering PTSD. The employer also sought and relied upon medical evidence from a number of the worker’s treating doctors.

In response to a number of questions posed by V/Line, V/Line’s Chief Medical Officer confirmed that -in his opinion- Mr Rowe (the worker) would never return to his pre-injury duties and that he was permanently unfit as a train driver.

V/Line subsequently terminated Mr Rowe on the basis that he was permanently unfit to undertake his duties and unfit to perform any alternative suitable employment within V/Line.

The Fair Work Commission found that the termination was not unfair and, importantly, held that the fact that Mr Rowe did not have the capacity to perform the duties he was employed to do and that, there was no prospect of him being able to perform his duties again, was a valid reason for his termination.

Fair Work Case 2: Mr Stephen Born v Aurizon [2014] FWC 22

In this similar case, Mr Born (the worker) lodged an unfair dismissal claim against his employer (Aurizon) after his employment was terminated on ” medical grounds”.

Again Mr Born was a loyal employee and had worked about 34 years as a train driver for Aurizon at the time of his termination.

In October 2011, Mr Born (the worker) suffered a stroke or a seizure after which he was unable to return to work.

The worker’s employer (Aurizon) demanded that Mr Born (the worker) ‘show cause’ as to why his job should not be terminated. They relied upon medical evidence of the worker and stated it appeared unlikely he would be able to perform his normal duties within a reasonable timeframe.

The FWC found that the worker’s termination was not unfair, stating that Mr Born was unable to perform the inherent requirements of his substantive role, because of his medical restrictions. Importantly, the FWC said that allowing Mr Born to return to work may have posed/poses a risk to both Mr Born and third parties.

You can read more about the 2 cases above in an article titled ‘Failure to Meet the Inherent Requirements – A Rail Safety Perspective

Case 3 – Federal Court of Australia: Australian and International Pilots Association v Qantas Airways Ltd [2014] FCA 32

In this case Quantas (the employer) had requested that the worker (Mr K, a pilot) provide detailed medical evidence of his condition. The FWC agreed with Quantas that this request did not amount to “adverse action” within the meaning of the Fair Work Act 2009 (Cth)

The worker was a pilot who had  provided Qantas (his employer) with a medical certificate in July 2012 stating that he was suffering clinical depression and that he was unfit for work for a period of time. Three months later, in October 2012,  he  provided a further medical certificate from his treating doctor stating that he was suffering a “medical condition” and would be unfit for work until January 2013.

Qantas requested the pilot (the worker) provides a written report from his treating doctor setting out the nature of his diagnosis, prognosis and capacity to return to pre-injury duties. When the pilot did not provide such information, Qantas indicated that any failure to provide the requested information would be considered as serious misconduct and may give rise to disciplinary action. It was then that the pilot lodged an adverse action claim.

The Federal Court of Australia dismissed the pilot’s claim. In doing so, the Court noted the importance of Qantas referring to and relying upon its obligations as an employer pursuant to applicable Work Health and Safety legislation, namely the requirement to ensure, as far as reasonably practicable, the health and safety of its employees.

The Court stated:

“In these respects, the need for planning to enable Mr Kiernan to return to work can be seen as part of the objective Qantas had mind in satisfy those requirements. Similarly, pilots who are unfit or uncertified to fly planes posed a significant and obvious risk to the health and safety of other persons, including potential passengers. In addition, Qantas’ rostering arrangements were directed, among other matters, to ensuring the health and safety of all other Qantas employees affected by the roster and the airline’s passengers. The need to accommodate the absence on sick leave of skilled employees, such as flight crew members, and to plan for their future orderly return to full or part-time duties within its organization or their cessation of employment (deepening on the nature of their illness and prognosis) all bore on Qantas'[ ability to fulfill its duties under s 19(2) and (3) of the Work Health and Safety Act and its analogues”

On this basis, it was held that the threat of the possibility of disciplinary action did not constitute adverse action for the purpose of the Act.

Whilst the above three cases show that employers may terminate workers on long term sick leave or workers who are not providing appropriate medical information, we must highlight that such ‘dealings’ by employers with  injured or ill workers carries a risk especially given the (intersecting) laws in relation to discrimination, unfair dismissal and adverse action.

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