Worker refuses independent medical examinations amid long-term absence

The Fair Work Commission (FWC) recently dealt with a case involving an unfair dismissal claim by a legal secretary against a law firm. The dispute centred around the worker's prolonged absence and her refusal to attend independent medical examinations (IMEs) requested by the employer.

The worker argued that she had been unfairly dismissed, claiming that the employer's requests for medical examinations were unclear and difficult to understand.

She said that she had provided ongoing medical certificates to justify her absence and that the employer had not adequately considered her medical condition. The worker also asserted that she had not been given sufficient opportunity to respond to the employer's concerns before the termination of her employment.

Continuous medical certificates for long absence

The worker had been employed as a legal secretary since 2006, initially with a law firm that later merged with the employer in April 2013. The worker's last working day was on 9 June 2017, after which she continually provided medical certificates until her termination on 26 September 2018.

During this period, the employer made several attempts to assess the worker's condition and capacity to return to work. The employer's manager of people and performance began following up on the worker's condition in January 2018.

Subsequent requests were made for details of the worker's treating medical specialist and consent to speak with them about her injury.

Employer’s requests for independent medical examinations

The employer made multiple attempts to arrange IMEs for the worker, all at the employer's expense. These attempts included:

1. A request on 12 June 2018 for an IME on 19 June 2018, which the worker did not confirm attendance for.
2. Another request on 18 June 2018 for an IME on 27 June 2018, which the worker did not attend.
3. A request on 10 July 2018 for the worker to attend an appointment with her own treating practitioner, Dr Reece, on 12 July 2018.

The worker did attend the appointment with Dr Reece on 12 July 2018. However, the IME was not completed as Dr Reece requested additional information from the employer about the physical requirements of the worker's duties.

Disciplinary actions and warnings

Following the incomplete IME with Dr Reece, the employer took several steps:

1. On 13 July 2018, the employer directed the worker to attend another IME on 25 July 2018, warning that failure to follow this direction could result in disciplinary action.
2. On 27 July 2018, the employer issued a written warning for failure to follow reasonable management directions regarding non-attendance at three IME appointments.
3. The employer directed the worker to attend an IME on 10 August 2018, which she did not attend.

The employer then sent a show cause letter to the worker on 14 August 2018. After receiving her response on 29 August 2018, a final IME was scheduled for 26 September 2018. When the worker did not attend this appointment, her employment ended on the same day.

FWC's consideration and decision

The FWC considered several factors in determining whether the dismissal was harsh, unjust, or unreasonable, as outlined in Section 387 of the Fair Work Act 2009. Key considerations included:

1. Whether there was a valid reason for the dismissal related to the worker's capacity or conduct.
2. Whether the worker was notified of that reason and given an opportunity to respond.
3. Any unreasonable refusal by the employer to allow a support person to be present during discussions related to the dismissal.
4. The impact of the employer's size and human resource management expertise on the procedures followed.

The FWC found that there was a valid reason for the dismissal, stating:

"The reason for [the worker's] dismissal was the failure to attend multiple independent medical examinations which was a reasonable direction. This was a valid reason of dismissal given that [the employer] was enquiring about [the worker's] capacity to work after being absent for over a year."

The Commission also noted that the worker was given multiple warnings and opportunities to respond before the dismissal. It found that the employer's procedures were appropriate, saying:

"The procedures undertaken by [the employer] went above what would have been required for [the worker's] dismissal when an employee is not capable of doing the inherent requirements of the role."

In dismissing the unfair dismissal application, the FWC emphasised the employer's efforts to accommodate the worker's circumstances:

"[The employer] was incredibly patient in accommodating [the worker's] circumstances waiting over a year and was mindful of her circumstances. [The worker] did not cooperate with [the employer]."

The Commission also commented on the prolonged nature of the case:

"This matter has been pursued by [the worker] for an extraordinary period of time. The delays in the matter have been caused by [the worker] who has sought a numerous number of adjournments."

The FWC further noted the worker's response to the process:

"[The worker] kept repeating 'she didn't understand and were not in clear easy to understand language.' In very simple terms, [the worker] has not been unfairly dismissed."

This case reminds employers about the importance of following proper procedures when dealing with long-term absences and assessing an employee's fitness for work. It highlights the need for clear communication, reasonable accommodations, and thorough documentation of all attempts to address the situation.