In CSL Limited T/A CSL Behring v Papaioannou [2018] FWCFB 1005 a Full Bench of the Fair Work Commission (Commission) clarified that it will make an independent assessment of medical evidence when considering capacity for work in unfair dismissal claims.

The approach set out in Lion Dairy,^[1] which stated the role of the Commission was simply to decide whether an employer’s assessment of capacity was reasonable, was found to be ‘plainly wrong’.

In order to decide whether a dismissal was harsh, unjust or unreasonable (and thus whether it was unfair) the Commission must take into account whether there was a valid reason for the dismissal related to an employee’s capacity or conduct.

As employers are well aware, making decisions about an employee’s capacity to perform the inherent requirements of their job can be particularly difficult when medical professionals provide differing viewpoints. Medical opinions can vary when it comes to issues such as the severity of a medical condition or the amount of leave the employee will need before returning to work. In circumstances where a claim for unfair dismissal is made, such decisions may be put under the microscope by the Commission.

How will the Commission decide if the reason for dismissal was valid?

In light of conflicting authorities, the Commission has now clarified the approach it must take when assessing the capacity of an employee for the purpose of an unfair dismissal claim. Where an employee has been dismissed on the basis of their capacity, the Commission is required to independently consider the medical certificates (and any other relevant evidence) and come to a conclusion as to whether the employee suffered from the alleged incapacity at the time of the dismissal.

Before this decision, there was some confusion about whether the Commission merely had to decide whether the employer had reasonably relied on the medical evidence (as was the case in Lion Dairy), or whether the Commission itself had to consider the evidence and make its own findings regarding capacity (the approach outlined in Jetstar^[2]). It is now clear the Jetstar approach is preferred. The Commission commented that:

[t]he object of establishing a balanced framework and providing a ‘fair go all round’ seems antithetical to the notion that it is the employer who resolves any conflict in the medical assessment of the employee’s capacity.

This means the Commission will not take the employer’s decision at face value, but will look at the evidence and come to its own conclusion about an employee’s capacity at the time of dismissal.

What if further information comes to light after the dismissal?

The need for the Commission to consider the evidence before it does not extend to evidence that came into existence after the decision was made to dismiss the employee.

This was clarified in Hyde v Serco Australia Pty Ltd [2018] FWC 2465 where it was held that an employee could not rely on a medical report that had only been obtained after their dismissal in order to challenge the validity of that dismissal.

It is worth noting in this case the employer was in a particularly strong position since the employee, who had union representation, had been explicitly offered the opportunity to obtain a further medical report prior to the decision about capacity being made, but had not done so.

What does this mean for employers?

Employers need to be careful to not just accept one medical view over another without a strong rationale for doing so.

An employer cannot assume that as soon as there is an independent medical examination, or any other medical report, which states that an employee does not have the capacity to perform the inherent requirements of their role, a valid reason for dismissal exists.

In order to give a decision to dismiss the best chance of standing up to scrutiny in the Commission, employers need to carefully consider all the evidence before making judgments about an employee’s capacity to return to work.

In deciding how to reconcile different medical opinions, some things employers should consider are:

• Can the medical opinion be used for this purpose?

An employer might not be able to use a medical opinion that is available to it. For example, workers compensation legislation in some states (such as the legislation in Victoria and New South Wales) says that a medical report obtained in the course of a workers’ compensation claim must not be used for any other reason (such as deciding whether to terminate an employee).

• What information was available to the medical practitioner?

Ideally, the view of both the employee, any relevant observations of the employer and any position description/job risk assessment will be available to them.

• What are the qualifications and experience of the medical practitioner?

Are they a specialist or a generalist? Usually, the opinion of a specialist will hold more weight. However, the employer must ensure that the right specialist or, if required, specialists are consulted.

• How well does any treating practitioner know the employee?

Where one practitioner has a longer history treating the employee, it is likely that they have a greater understanding of the employee’s capacity. However, if the treating practitioner has failed to properly address the employer’s questions, an independent view may need to be sought.

• How recent is the medical opinion?

It is possible that the employee’s circumstances may have changed since a particular assessment was done. Consider whether a more up-to-date opinion should be obtained before making a decision about capacity.

• Should comment be sought on a particular report?

Where an independent medical examiner provides an opinion which conflicts with another report, it may be appropriate for the employer to invite other medical practitioners (such as the employee’s treating GP or a further independent expert) to comment on that report.

Indeed, when assessing any medical information employers should always be conscious of not making assumptions. This is discussed further in our article ‘It’s not “safe to assume” when managing employees’. Employers also need to be aware they have certain obligations under anti-discrimination and safety legislation to employees who disclose a medical condition. For more information on this, see ‘Caught out by a blank space’.

Post script

After the Full Bench decision, Mr Papaioannou’s unfair dismissal case was reheard in July of this year. In this fresh decision, Papaioannou v CSL Limited T/A CSL Behring [2018] FWC 3908, the Commission considered both medical opinions and held the reason for Mr Papaioannou’s dismissal was valid. This was because, while the medical opinions differed on how long it would be until Mr Papaioannou could return to work, they agreed it would be at least about six months (after he had already been off work for 10 months). However, the dismissal was found to be harsh, unjust or unreasonable because it prevented Mr Papaioannou from benefiting from a salary continuance plan, as provided by the applicable enterprise agreement, that had another 20 weeks to run. Mr Papaioannou was reinstated without compensation for lost remuneration as he had not taken steps to mitigate his loss once he was fit for work.

If you would like more information or advice about managing employees whose capacity for work may have been affected by illness or injury, please contact a member of our Employment, Safety & People team.

[1] Lion Dairy & Drinks Milk Ltd v Norman [2016] FWCFB 4218.

[2] Jetstar Airways Ltd v Neeteson-Lemkes [2013] FWCFB 9075.