Sacked on medical grounds, but doctor not consulted


Sacked on medical grounds, but doctor not consulted

A nurse who was sacked after her employer deemed her medically unfit for work has won compensation for unfair dismissal.


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The Fair Work Commission has stressed the need for an independent medical opinion if an employee is dismissed on the grounds on medical incapacity.

In these unfair dismissal proceedings, deputy president Masson ordered a nurse be compensated $4240, plus superannuation. The employer failed to provide the employee with warnings about her underperformance and did not give her an opportunity to respond to the dismissal decision.

The employer justified the dismissal on the grounds the nurse was medically unfit to continue in her job. The alternative, not pursued by the employer, would have been to argue underperformance and poor performance and then manage the dismissal in a procedurally fair manner.

Although the employer was a medical centre with medical practitioners on the board, proper independent third party medical investigations did not take place. The commission pointed to the need for independent third party guidance in these circumstances.

Dismissed on medical grounds

The commission noted that the employer was unable to establish that the employee's medical condition meant she could no longer carry out the inherent requirements of her position.

The commission also noted that evidence was not presented to support the claim that her unsatisfactory performance in the position was symptomatic of her medical condition.

Valid reason for dismissal

The FWC found the employer had a valid reason for dismissing the employee due to her underperformance.

Evidence of poor performance and underperformance included: failing to properly complete patient care plans; throwing out vaccines that were within use-by dates; failing to accurately check a patient file regarding a child vaccine requirement; and failing to understand how to conduct a manual blood pressure test.

Despite having a valid reason to dismiss, the employer failed to provide procedural fairness in managing the employee’s dismissal.

The medical condition of the employee

Prior to commencing employment, the nurse disclosed her diagnosis of multiple sclerosis. During her seven-year employment, the employer-medical practice accommodated her multiple sclerosis, including the use of her electric wheelchair and additional time off.

About a year before her dismissal her employer expressed concern that the nurse's medical condition was deteriorating, following observations by management and staff. The deputy president had no doubt that the employer was genuine in its belief in these respects.

Inadequate evidence

The employer’s reason for the nurse's dismissal was medical incapacity, However, there was no independent medical opinion to support ‘medical incapacity’. This was simply the opinion of management, without proper medical diagnosis.

The employer had failed to provide the nurse with warnings about her performance, or an opportunity to respond to the reason for dismissal.

Case authority

The commission pointed to the principles summarised by a FWC full bench  in Lion Dairy case as relevant when considering dismissal on the grounds of medical incapacity.

In that case, the bench stated that an employer is usually required to rely on expert medical opinion or opinions when dismissing due to medical incapacity, and not make an independent assessment of a medical question. Whether reasonable adjustments may be made to accommodate any incapacity of the employee to perform the role was also a relevant factor.

Evidential failings

The commission commented on how the employer came to its opinion of ‘medical incapacity’:

"One of the challenges confronting the Commission in assessing the medical evidence in this matter is not so much an abundance of medical opinion but rather the absence of it. ... No formal medical reports were tendered in evidence by either the applicant or respondent. ...
The views of the directors were not expressed as a clinical diagnosis of the nurse, or as medical reports informed by a formal assessment."

Dismissal justified but reason unclear

The deputy president noted that, taken as an aggregate, the performance issues revealed that the nurse was not able to meet the reasonable requirements of the role.

In the absence of any medical evidence being tendered, the deputy president indicated he was not able or prepared to determine whether the performance issues were symptomatic of the nurse's medical condition progressing. In totality, the performance issues were significant and supported a valid reason for the dismissal.

Failures in procedural fairness

The deputy president was not satisfied the nurse had been given an opportunity to respond to the reasons for the termination of her employment.

The evidence established that the employee was not notified of the specific allegations in relation to her performance and capacity issues until 4 May 2017.

The nurse’s union sought further information from the employer but this was not forthcoming. The employer stuck by its decision to dismiss the nurse without providing the additional information requested, thereby denying the nurse an opportunity to respond to the employer’s reasons.  

The employer also failed to provide the nurse with any warnings in relation to the unsatisfactory performance.

No reinstatement

The deputy president was not persuaded the woman was capable of returning to her former role. If the performance management issues had been properly addressed, the employee would have been dismissed in a relatively short time frame, in the commission’s view.

The bottom line: When an employer believes there are medical grounds justifying dismissal, on the basis that an employee’s medical condition has resulted in the employee being unable to perform the inherent requirements of the job, then that opinion should be substantiated by independent medical advice before any dismissal occurs.

Logan v Knoxfield Medical Centre P/L t/a Colchester Medical Centre

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