Dismissing Employees on Medical Grounds: What to consider

Employers need to make sure the medical reports they rely on when dismissing employees on medical grounds will stand up to the scrutiny of the FWC

The Full Bench of the Fair Work Commission (FWC) recently had reason to consider the merit of two of its earlier Decisions, which were in conflict.

Essentially, the Decisions relate to the role of the FWC in assessing the merit of medical evidence relied on by an employer when dismissing an employee on medical grounds.

In 2013 in Jetstar Airways Ltd v Neeteson-Lemkes [2013] FWCFB 9075 (the ‘Jetstar Decision’) the Full Bench relevantly found that it was the function of the FWC to consider all medical evidence relied on by both the employer and employee, and then make findings as to the employee’s capacity to work at the time of the dismissal.

In 2016, in Lion Dairy & Drinks Milk Ltd v Norman [2016] FWCFB 4218 (the ‘Lion Dairy Decision’) the Full Bench relevantly found that the FWC is not in a position to make an expert medical assessment of the medical evidence relied on by both the employer and employee. Therefore, if the employer reasonably relied on medical evidence that supports its decision to dismiss the employee, then that is the end of the matter.

This year the Full Bench, in CSL Limited T/A CSL Behring v Chris Papaioannou [2018] FWCFB 1005, resolved the conflict.

It preferred the approach taken in the Jetstar Decision, finding that the FWC is required to make a finding as to whether the dismissed employee suffered from the incapacity relied on by the employer to effect the dismissal, at the time of the dismissal.

Lessons for employers

Employers need to make sure the reports they rely on in these circumstances are able to stand up to the scrutiny of the FWC.

We recommend the opinion you rely on, come from a person who:

• is suitably qualified;
• is appraised of the inherent requirements of the employee’s position; and
• preferably, examines the employee.

If you have any questions, do not hesitate to contact our Employment Law team.