Worker blasts employer's failure to offer support while 'medically unfit for work'
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case where a worker argued his dismissal was unjust after taking extended medical leave.
The worker claimed his employer failed to support him during personal difficulties and terminated his employment while he was medically unfit for work.
The case raised questions about how employers should manage workplace investigations when an employee is on medical leave, and what constitutes reasonable directions during such periods.
Alleged work incident
The worker started his role as development manager at a property development company in October 2019. In July 2023, he took leave to attend a court trial related to a domestic violence matter, though his manager said he wasn't aware of the nature of the trial at the time.
On July 28, 2023, the worker attended a company social club event where an incident occurred. A colleague filed a complaint claiming the worker had inappropriately touched them. The worker denied this and said instead that the colleague had assaulted him by pinching his cheek.
Following the complaint, the employer's people and culture manager stood down the worker with pay and told him not to contact any employees involved in the investigation.
Despite this direction, the worker sent text messages to the complainant the next day, asking: "Why did you pinch my cheak [sic] so hard in [sic] Friday night? It bruised my face" and "I know what it was."
Worker’s medical leave
The employer tried multiple times to schedule investigation meetings in August 2023. The worker missed the first meeting citing illness, then requested a delay to engage a solicitor.
When further meetings were scheduled, the worker began providing medical certificates stating he was unfit for work or to participate in the investigation.
Between August 2023 and January 2024, the worker provided five separate medical certificates from his general practitioner, each extending his leave. The certificates consistently stated the worker was unfit for work and unable to participate in any investigation process.
By August 23, 2023, as noted in the decision: "[the worker's] personal leave had been exhausted and any further leave would be processed as unpaid leave."
Employer’s request for return date
The situation reached a critical point when the employer's head of people & culture wrote to the worker stating:
"[The employer] cannot continue to keep [the worker's] position open indefinitely, when his return date is not known and he is not providing information about a potential return date or any restrictions that may apply to his employment on his return to work."
The employer arranged an Independent Medical Examination (IME) in January 2024. However, the worker declined to attend, stating in an email: "Please have some respect and understand I am on leave."
‘Failure to provide sufficient medical information’
In January 2024, the employer issued a Show Cause letter outlining six instances where the worker had failed to comply with directions, including:
- Contacting employees after being directed not to
- Missing three investigation meetings
- Failing to provide sufficient medical information
- Not attending the IME
When asked to respond, the worker only addressed the original incident and repeatedly stated: "Please respect that I am on leave."
Dismissal over extended medical leave
The Commission found the dismissal was justified. The decision explained: "It was lawful for [the employer] to ask [the worker] to attend an IME, and it was reasonable for [the employer] to ask [the worker] to attend given that he failed to attend 3 meetings beforehand regarding the investigation due to 'medical reasons'."
The Commission noted: "After a long period of absence, [the employer] should be cautious about returning the employee back to work. [The employer] has a duty of care to the employee and as a result the use of an IME should be appropriate and responsible."
In its conclusion, the Commission stated: "[The worker's] dismissal was not harsh, unjust or unreasonable in considering all the circumstances as he was given numerous opportunities to engage with [the employer] and provide further information but failed to do so."
While the worker had raised issues about experiencing domestic violence since 2001, his managers said they weren't aware of this until after his dismissal. The Commission found these factors didn't explain why the worker failed to attend the IME or investigation meetings.
