Injured and recovering workers who fail to supply medical information requested by their employers about their ability to perform their job can be sacked. Two separate and fairly recent legal cases highlight that injured workers have to allow their employer(s) to obtain medical information from their treating doctor(s), if they request so.
Can injured workers be sacked for failing to provide medical info?
Case 1: Failure to provide medical information did not constitute misconduct – unfair dismissal
[Full text of this case: DC v Coles Group Supply Chain Pty Ltd  FWA 6600 (18 September 2012)]
In this Fair Work Australia case, there was absolutely no valid reason to sack an injured worker who did not cooperate with his employer’s requests for information about his fitness for work.
In March 2011, a storeman was involved in an accident at Coles when a battery on a forklift he had been operating exploded, causing him injury.
Coles initially accepted the injured worker’s workers workcover claim and put him on ‘suitable duties’. However Coles (and its insurer) subsequently declined his workcover claim in August, withdrew him from his suitable duties and told him to ‘go home’.
From that date, the injured worker was given access to his accrued leave entitlements (which ran out in November). The ‘sacked’ injured worker also ceased to personally supply medical information to Coles, however he continued to provide medical certificates to his lawyer.
In November, the injured worker’s lawyer filed a dispute with the Workers Compensation Commission (WCC), which acknowledged receipt of his application shortly afterwards.
On 15 February 2012, the injured worker was officially dismissed (sacked) for his alleged failure to respond to written correspondence from Coles dated 29 November 2011, 17 January 2012 and 3 February 2012 requesting further information in relation to his medical status to determine his capacity to return to work. In Coles’ view, the injured worker’s failure to provide medical information constituted a refusal to follow a reasonable and lawful directive from the employer, constituting serious misconduct. The injured worker was subsequently terminated (and paid 1 week’s wages).
On 24 February 2012, the WCC issued a certificate of determination — consent orders, which restored the injured worker’s entitlements from 23 August 2011.
The injured worker applied for unfair dismissal. He stated that his dismissal was unfair and he also sought reinstatement as well as compensation for his lost wages.
The FWA Commissioner (M Roberts) felt that the filing of a dispute with the WCC by the injured worker’s lawyer had ‘galvanized Coles into action’ because the employer (Coles) had shown ‘no interest’ in his health situation between 23 August and 29 November.
FWA Commissioner said that the injured worker’s decision to cease personally supplying medical information to Coles in August 2011 was based on the ‘quite reasonable’ assumption that his claim was being properly handled by his lawyer as well as by his Union.
FWA Commissioner accepted the injured worker’s evidence that he did not directly action Coles’ requests for medical information because the union had advised him that there was no need to because the matter was in hand and awaiting proceedings before the (WC)Commission.
FWA Commissioner also accepted that the injured worker did in fact act on the 29 November 2011 letter, by supplying Coles with consent forms allowing the employer to obtain information from his NTD (Nominated treating Doctor)
According to FWA Commissioner, ‘from that point, the matter was between Coles and the NTD’. He also stated that it was ‘reasonable’ for the injured worker to rely on his NTD to supply the information he had authorised the release of.
‘I do not see how it is possible for Coles … to claim that [it] knew nothing of [the injured worker’s] medical condition between the period 23 August 2011 to 15 February 2012,’ the commissioner stated.
‘It is clear to me that the Consent Determination from the [WCC] whereby Coles reinstated [the injured worker’s] entitlements must have been based on more information than Coles claims to have been in possession of.’
FWA as such determined there was no valid reason for Coles to dismiss the injured workerr, because he was not guilty of any form of misconduct relating to the matters set out in the termination of employment letter.He found that the injured worker’s termination was harsh, unjust and unreasonable.
The injured worker was reinstated to his former position with full continuity of employment and compensation for lost wages.
Case 2: Failure to provide medical information = valid dismissal
The (injured) worker was a correctional officer with The GEO Group Australia Pty Ltd. In September of 2011, she suffered (a second) work related injury and was put on suitable duties with GEO in a full-time administrative position. She worked in this position for 2 years. In March 2014, the injured worker was told that the administrative position would expire soon and- given her medical restrictions- and no other positions/jobs were available in which she could work.
GEO informed the the injured worker they would be ending her employment on account of her inability to satisfy the inherent requirements of her correctional officer position. The injured worker was subsequently asked to supply GEO medical information for GEO to consider before making its final decision whether or not to end her employment.
The injured worker advised GEO via email that she had been given the all clear from her doctor to recommence her pre-injury duties. Given the fast and sudden change her medical capacity, GEO requested a medical certificate ascerting her suitability to undertake the correctional officer role, a report about the sudden change of her work capacity from her GP, as well as an authority from the injured worker to allow GEO direct correspondence/communication with her treating GP.
The injured worker gave both the medical certificate and a report to GEO, however she did not provide the medical authority for direct communication with her GP. Given the injured worker’s non-compliance with the requirements of GEO, they chose to terminate her employment.
FWA Commissioner (Bissett) decided that the injured wroker’s termination was not harsh, unjust nor unreasonable.
This very recent FWA decision supports the obligation of workers to cooperate wholly with reasonable requests of employers for information concerning their work capacity to fulfill their job duties.
Whilst the injured worker did tender a report, in the context of GEO striving to ascertain the reason for the sudden turnaround in her capacity, FWA Commissioner stated the absence of an opinion about this topic did little to assist GEO.
FWA Commissioner also said that the injured worker’s return to (pre-injury) work needed to be controlled to ensure that there was/is no risk to the injured worker, colleagued and/ or prisoners of the correctional facility. He stated GEO had an obligatory duty of care and it was appropriate to ensure it continued to uphold this duty. It was therefore salient an authority was not provided by the injured worker to contact her (treating) doctor.
FWA found there was a reluctance on the part of the injured worker to (fully/wholly) participate with GEO in endeavours to address relevant health and safety concerns. The fact that the injured worker had been made aware of GEO’s contemplation of terminating her employment meant she had adequate and sufficient time to respond.
As such the injured worker’s dismissal was valid and upheld.
an employer has also the right to:
- direct an employee to attend a [company] doctor for an assessment to verify his or her fitness for work
- discipline the employee (up to and including termination of employment!) if s/he refuses a lawful and reasonable direction to attend the medical assessment. See:http://aworkcovervictimsdiary.com/2014/08/employer-right-direct-injured-worker-undergo-medical-assessment/
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