FWC rules against employer who missed medical clearance
The Fair Work Commission (FWC) recently ruled on an unfair dismissal case involving a worker who was terminated after a workplace injury despite being medically cleared to resume work. The worker claimed her employer showed little interest in her recovery, instead outsourcing the process to third parties, while the employer argued the termination was justified due to her extended absence and perceived incapacity.
The worker had been employed at a fabric company since September 2018 and was working as a decorative sales manager when dismissed. Her duties included customer relations, preparing orders, serving clients, and handling samples weighing up to 25kg.
On August 3, 2022, she suffered a fifth metatarsal fracture after stepping down from a kerb while leaving a client site. Initially, doctors recommended rest to avoid surgery, but as her condition developed, surgery became necessary. Throughout her recovery period, she did not return to the workplace and stated her employer provided no return-to-work program.
The worker attended a medical appointment in early April 2024 at the direction of the employer's insurance company (GIO). Dr. Mingguo Li's report dated April 8, 2024, stated that while she experienced "dull-aching along the lateral edge of the right foot when walking on hard surfaces," she had "minimal or no foot pain otherwise." Crucially, the doctor concluded: "From the right foot injury point of view, she is fit for pre-injury duties without restrictions."
On May 7, 2024, after the worker's 18-month absence, the employer wrote expressing concern about her ability to return and indicated they were considering termination. A meeting was held on July 15, 2024, to discuss her potential return and consider her response to a show cause letter. Following this meeting, the national sales manager requested Dr. Ming Lee's medical report and an email the worker had mentioned during their discussion.
When the worker did not respond to this request, the employer proceeded with dismissal on July 29, 2024, citing her extended absence and perceived lack of timeframe for return without restrictions.
At the hearing on November 11, 2024, it became apparent that the employer had not seen or assessed Dr. Li's April 8 medical report clearing the worker to return to duties. The FWC noted: "There appears to be no logical explanation as to why [the employer] did not receive a copy of this report previously from their insurance company or from [the worker] directly."
Email records showed the worker had asked a representative from Working Life (the third-party provider managing her claim) whether the medical report had been sent to her employer. The representative responded that they were "unable to confirm" if the email had been forwarded. Despite this uncertainty, the worker never sent the report directly to her employer.
The FWC determined there was no valid reason for dismissal, finding the employer "had a basic duty of care to ensure that they had all relevant information on hand prior to terminating her employment." The decision emphasized that the employer "had a basic obligation to keep themselves informed and up to date with the prognosis and status of [the worker's] injury," especially when considering termination.
The Commission concluded the employer "should have been aware through the various service providers it engaged of [the worker's] ability to return to work in April 2024" and "decided to terminate the employment of [the worker] on incomplete information and without a sound, defensible, or well-founded reason."
While ruling the dismissal unfair, the FWC acknowledged the worker's role in the communication breakdown: "The conduct of [the worker] contributed to the decision of [the employer] to terminate her employment. [The worker] was aware that there was a medical report confirming she was fit to return to work. However, [the worker] did not take any action to bring this report to the attention of [the manager]."
The Commission noted: "Had [the worker] alerted [the manager] to the existence of the medical report prior to her termination, such as during the show cause process as she was prompted, it is likely her employment would not have been terminated. This factor may hold relevance in the future determination of remedy."
The FWC determined the dismissal was unjust under section 385 of the Fair Work Act 2009, finding "no valid reason for the termination." The worker "was not incapacitated or unable to perform the inherent requirements of her position at the time of her dismissal." The decision concluded that the employer "failed to complete a proper internal investigation or review of the medical report to establish that [the worker] was incapacitated and unable to perform her duties," instead reaching a conclusion "on assumptions or incomplete information."
The parties were to be contacted regarding appropriate remedy, with the worker's contribution to the communication failure potentially influencing this determination.
