Decision to dismiss employee for incapacity upheld despite conflicting medical opinion22 June 2018 | Employer's Liability
The employee was dismissed on medical grounds for his inability to fulfil the inherent requirements of his employment. In finding that the employee had not been unfairly dismissed, the Fair Work Commission held that when determining incapacity, the Commission is not required to have regard to medical evidence which is adduced after the employee has been dismissed.
- Whether an employee’s dismissal for incapacity reasons was valid?
- Whether a conflicting medical opinion provided following dismissal, can be considered when determining whether the dismissal was valid?
Mr Hyde was employed by Serco Australia (Serco) as a custodial officer. In June 2016 Mr Hyde underwent surgery to fuse his right ankle joint. Serco requested from Mr Hyde’s surgeon details regarding whether he was fit for his pre-injury work duties. Mr Hyde’s surgeon provided a report which stated that he was fully recovered however would never be fit to return to pre-injury duties at 100%, and that he would require assistance from another employee in order to respond to emergency situations. Relying on this medical opinion Serco asked Mr Hyde to demonstrate why his employment should not be terminated based on his incapacity to perform the requirements of his job.
The union representing Mr Hyde wrote to Serco requesting more time for Mr Hyde to respond and obtain a second medical opinion. Serco agreed, however the medical report was not provided. Mr Hyde with assistance from his union responded to Serco challenging the surgeon’s understanding of his job and his ability to meet the requirements of it. Serco subsequently dismissed Mr Hyde. Following his dismissal, Mr Hyde obtained a further medical report from a consultant physician which indicated that Mr Hyde was able to perform his pre-injury duties. Mr Hyde brought an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (the Act).
In essence Mr Hyde relying on CSL Limited  FWCFB 1005, argued that the test for the Commission in determining the validity of a dismissal based on incapacity, is whether at the time of his dismissal, the employee was suffering from the alleged incapacity based on the evidence before the Commission. Which Mr Hyde argued, in this case, included the report he obtained following his dismissal.
The Decision by the Commission
The Commission held that Mr Hyde’s inability to perform the inherent requirements of his job posed a risk to the safety and welfare of both himself and his fellow employees, and therefore his dismissal was valid. In coming to this determination the Commission held that the conflicting medical report obtained by Mr Hyde following his dismissal should not be taken into account when determining whether the dismissal was valid.
The Commission noted that the decision of CSL Limited is applicable however; in that case the conflicting medical opinions were available to the employer at the time of the dismissal, whereas in this case, the conflicting opinion was not available.
Furthermore the Commission noted that because Mr Hyde had been given the opportunity to provide an alternative medical opinion before his dismissal which he did not do, it was entirely reasonable for Serco to rely upon the medical opinions which were before them at the time the decision was made.
With consideration to the objects of the Act, the Commission noted that it would not be consistent in providing a “fair go all round” if a medical opinion that did not exist at the time the decision to dismiss Mr Hyde was made, could be used to challenge the validity of that dismissal. However, the Commission did note that the opinion may be relevant when considering remedy.
Implications for you
When determining whether an employer’s decision to dismiss an employee is valid, the Commission will only have regard to the evidence that was before the employer at the time of the dismissal. Whether or not it is just to dismiss an employee because of incapacity reasons will depend on the circumstances of the particular case. Employers should be cautious when dismissing an employee for incapacity reasons and should ensure that they are always complying with Fair Work dismissal procedures.
Demi Peters, a graduate in our Insurance & Health team, assisted with writing this article.