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Academic thwarted efforts to establish work fitness

Deliberately dragged out fitness for work assessments resulted in dismissal.
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Academic thwarted efforts to establish work fitness

Academic thwarted efforts to establish work fitness

7 September 2020

By Mike Toten

A university academic who had been off work for 13 months due to illness deliberately thwarted her employer’s attempts to establish whether she was fit to return to work.

The Fair Work Commission rejected her claim of unfair dismissal, finding that she used tactics to try to wear down the employer that the FWC described as “a game of semantics”.



Refused medical assessment

The woman was a lecturer employed for 26 years, who was dismissed for being unable to perform the inherent requirements of her job. That decision was based on her repeated refusal to have an independent medical assessment of her fitness for work. It led the university to conclude that there was no prospect of a return to work within the required time frame.

The following events occurred:
  • The employee denied refusing to attend assessments, claiming either that it was not possible for her to meet the appointments, or that she attended and doctors refused to see her.
  • She refused to complete a medical information form, objecting strongly to its contents and claiming that it was an attempt to prevent her from exercising her legal rights. She then threatened the university that she would lodge a privacy complaint and regard any further attempts to comply with the medical process as harassment and bullying.
  • She made a complaint of intrusion into her privacy. The university’s Privacy Officer responded confirming the legitimacy of the employer’s requests and claiming compliance with privacy requirements,
  • When she did attend for a rescheduled examination, she handed over a consent form that she had modified to make it unacceptable and ensure it was rejected. She refused to sign the clinic’s consent form. The FWC described that as a further refusal to attend, as it was equivalent to refusing to sign a consent form. It added that she had stymied all attempts to verify whether she was fit to return to work.
  • The university then notified her it was considering dismissing her on medical grounds and with six months notice. She replied in derisory terms, describing the notice as a threat but saying that it would be “futile to seek to dissuade” the employer.
  • The university issued a further request to attend an examination before it made a decision, but she declined it.
  • After she had been off work for 13 months, the university dismissed her.

The employee’s enterprise agreement stated that repeated refusal to attend an independent medical assessment would provide prima facie evidence that the employee was unable to perform the inherent requirements of the job and would not be able to return to work within the specified time limit.


Decision

The FWC found that the university had a valid reason to dismiss her, being that she was unable to perform the inherent requirements of the job. It had provided multiple opportunities for her to provide medical evidence, complied with the relevant enterprise agreement, and been flexible, lenient and willing to explore alternatives. However, the employee’s response was to attempt to let the matter drag on for as long as she could until she either wore the employer down or returned to work at a time of her own choice. The FWC described her tactics as “naive” and “a game of semantics”.

The bottom line: Repeated refusal to attend a medical examination validly requested by an employer – in this case, in compliance with the enterprise agreement – can amount to a valid reason to dismiss an employee. This is because it can entitle the employer to conclude that there is no evidence the employee is able to return to work and therefore he/she cannot perform the inherent requirements of the job.

Employers need to check the provisions of relevant legislation, awards or agreements before taking action, and comply with them.

In this case, the employee went to great lengths to prevent herself from undergoing a medical assessment, and the FWC found her conduct to be deliberate obstruction.


Read the judgment

Hudson v RMIT University [2020] FWC 4289, 20 August 2020
 

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