Failure to Attend IME Grounds for Dismissal Failure to Attend IME Grounds for Dismissal

Failure to Attend IME Grounds for Dismissal

27 February 2020 | Employment and Safety

The Full Court of the Federal Court of Australia recently upheld a dismissal by Western Union Business Solutions (Australia) Pty Ltd (Western Union) of an employee who after a 7 month absence refused to attend an IME.

In Issue

  • Whether there were valid reasons for the dismissal.
  • Whether the dismissal was on account of the employee’s mental disability.
  • Whether the employee would have returned to work.
  • The amount of compensation which should have been awarded.

The Background

Robinson was employed as a “Client Executive” by Western Union from February 2013 until 8 May 2017 when he was dismissed. During this time, Robinson took sick leave from September 2016. Medical certificates were provided to cover the period from 16 September to 18 October 2016 and 4 January to 8 February 2017. The certificates stated he was unable to work due to “a medical condition”; “significant work related stress and depression”; and “a major depressive disorder associated with significant anxiety”. WorkCover certificates were also provided to cover from 19 October 2016 to 15 February 2017 and 17 March 2017 and 16 May 2017 which stated Robinson had “no current work capacity for any employment”. Western Union followed up with Robinson to enquire about his return to work multiple times. On 13 January 2017, Ms Chidiac, who was Robinson’s “HR Contact” at Western Union sent a letter by email to Robinson requesting he attend an independent medical assessment with a doctor of Western Union’s choosing. The doctor would be required to provide a recommendation for a timeframe for Robinson’s return to work, which would allow Western Union to facilitate his return to work. A follow up email was sent on 27 January 2017 which Robinson replied to, requesting that Ms Chidiac contact his general practitioner, who could assist with his return to work plan. In a letter dated 27 February 2017, Ms Chidiac advised that failure to attend an assessment before 8 March 2017 would be treated as a breach of his contract of employment and Western Union may then terminate his employment without further notice. A letter dated 8 May 2017 then terminated Robinson’s employment.

The Decision at Trial

The Court found there were two reasons for the dismissal; Robinson’s unreasonable failure to attend an independent medical examination and the concern or uncertainty as to Robinson’s ability to return to work. The first reason, being failure to attend an IME, did not, by itself constitute discrimination (as alleged).

The second reason was similarly not found to be discriminatory, as the Court could not find that Robinson’s dismissal was because of his mental disability. Instead, the serious concerns about Robinson’s ability to return to work were based on the seven months of leave Robinson had, the refusal to submit to a medical examination and the lack of indication when Robinson would return. The finding was supported by the employer’s ignorance to any manifestation of Robinson’s mental disability and its focus on Robinson’s capacity to work, not any underlying cause for his incapacity. Robinson’s disability was neither subjectively the employer’s reason for dismissing Robinson, nor objectively was it what had motivated its conduct; therefore, it could not be the reason for his dismissal.

Implications for you

This case confirms that employees who are absent on sick leave must comply with reasonable requests to attend independent medical examinations by employers. Failure to attend, where the request is reasonable, can provide employers with justification to terminate the employee.

Where there is no clear plan for an employee to return to work, the employer may also be able to terminate employment, so long as any disability does not form part of the reasoning for the decision to terminate and the focus is on the employee’s capacity to work.

 

Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181

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Bill Conor

Bill Conor

Special Counsel