Justitia Update. 14 May Dismissal of injured employee fair

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1 Justitia Update 14 May 2014 This Justitia Update outlines recent important decisions affecting the employment and industrial relations landscape. Dismissal of injured employee fair Employees who are absent from work due to injuries require careful management by employers. If an employee is no longer able to perform the inherent requirements of the job, an employer may consider terminating their employment. In these situations, the accuracy and relevance of medical reports is of primary importance, as is ensuring that the employer adopts a fair and transparent process when making the decision. A recent unfair dismissal application involving a flight attendant for Jetstar Airways provides a useful example. The applicant, Ronald MacDonald, had a history of various workrelated injuries during his employment with Jetstar as a flight attendant. The injuries affected his arms and shoulders. From October 2008, the applicant had intermittent periods of time off work as a result of his injuries. In late July 2012, the applicant was declared unfit for work. From that point until his dismissal on 14 February 2013, the applicant did not return to work. Jetstar s workers compensation insurer accepted liability for one of the applicant s injured shoulders in May 2011 and the other in January On 14 January 2013, the applicant s manager sent him a letter advising that Jetstar was considering terminating his employment on the basis

2 that he was unable to perform the inherent requirements of his role as a flight attendant. The letter explained that Jetstar was making this assessment based on the report of Dr Bloom, an occupational and environmental physician, who had been engaged to assess the applicant in November The applicant was asked to provide any additional material that he would like Jetstar to consider before it made a final decision regarding his ongoing employment. The letter requested that the applicant respond by 21 January 2013 and offered the applicant the opportunity to meet with the manager on 23 January 2013 to discuss his employment status. The applicant s solicitor wrote to the manager on 21 January 2013 requesting a copy of Dr Bloom s report. On the same day, the manager was informed that the applicant had obtained a full-time role with another employer but would not resign from his role at Jetstar because he wanted a permanent part-time role on weekends only. On the basis of this information, the manager wrote to the applicant s solicitor stating that obtaining employment with another employer would be in conflict with the applicant s employment contract and asking when Jetstar would be receiving the applicant s resignation. The manager subsequently sent the solicitor a copy of Dr Bloom s report and extended the applicant s required response to 4 February On 14 February 2013, having not received any response to his correspondence with the solicitor and with the applicant not taking the opportunity to meet with him on 23 January 2013, the manager wrote to the applicant advising of his termination effective immediately with pay in lieu of notice. The applicant made an unfair dismissal application. Commissioner Bull concluded that Jetstar had a valid reason to dismiss the applicant based on the report of Dr Bloom. The applicant s solicitors relied on a subsequent medical report, commissioned by the applicant in excess of four months after his dismissal, which suggested the applicant was fit for duties. Commissioner Bull dismissed this evidence as being an irrelevant factor in considering whether at the time of dismissal a valid reason existed. Dr Bloom s report had concluded that the applicant was unfit to perform the inherent requirements of the job of a flight attendant and was not likely to be able to do so in the foreseeable future. Given that the applicant had not responded to the request for further information, Jetstar had no reason to consider that Dr Bloom s opinion or the 2 Justitia Lawyers & Consultants 2014

3 condition of the applicant had altered when it made the decision to terminate his employment. Commissioner Bull was satisfied that the applicant had been given a genuine opportunity to respond to the manager s request for further information and that the timeframe for that response, which was initially seven days and then extended to three weeks, was sufficient. Although the unfair dismissal application was unsuccessful, the Commissioner did identify some deficiencies in relation to the process adopted by Jetstar that were not reflective of a large employer with its concomitant resources. The Commissioner noted that the manager was basically unfamiliar with Jetstar s policies relating to workplace injuries and, as a result, these policies were not closely adhered to by Jetstar in this instance. The Commissioner was also critical of Jetstar s initial handling of the Dr Bloom report. He stated that the applicant should have been given a copy of the report when he was advised, on 14 January 2014, that it was the basis for Jetstar considering the termination of his employment. The provision of such critical information was essential to providing and ensuring a transparent and fair process. The Commissioner further concluded that Dr Bloom had not been given all the relevant documentation and facts when he assessed the applicant, including that the applicant was now a part-time employee and that he had passed the emergency procedures training in May Dr Bloom s evidence confirmed that these matters would not have altered his opinion that the applicant was unfit to perform the inherent requirements of the job. Had Dr Bloom s evidence been otherwise, Commissioner Bull surmised that the outcome of his decision may have been different. Commissioner Bull stated that Jetstar should have done better in its handling of the applicant s dismissal but concluded that the threshold of unfairness had not been met by the procedural deficiencies. The unfair dismissal application was dismissed. Ronald MacDonald v Jetstar Airways Pty Limited T/A Jetstar [2014] FWC 488 Lessons for Employers When briefing medical experts to make an assessment of an 3 Justitia Lawyers & Consultants 2014

4 employee s ability to perform the inherent requirements of their role, it is essential that the employer provides the expert with up-to-date information about the employee s role, including a detailed description of the duties they are required to perform in their role. This information should also include any relevant medical reports or physical assessments regarding the employee that are in the possession of the employer. A key element of procedural fairness is that employees are given the opportunity to respond to any reasons for their dismissal relating to their capacity or conduct. This opportunity should be given prior to a final decision being made by the employer. It is listed in the Fair Work Act as a factor that the Commission must take into account in unfair dismissal cases. In the case of an injured employee, this means that if an employer is relying on the opinion of a medical expert to demonstrate that an employee can no longer perform the inherent requirements of their role, the report should be provided to the employee so that they can make a fully informed response. Unfair dismissal after media report The Fair Work Commission has found that an employer was manifestly unjust in dismissing an employee nurse on the basis of a media report of a presentation she made at an industry conference. The employee made an unfair dismissal application to the Commission. The media report attributed a comment to the employee that she did not actually make. According to Vice President Lawler, this was one of the clearest cases of unfair dismissal His Honour had ever experienced. Sharon Morunga was employed as a health professional by the Anyingi Health Aboriginal Corporation ( the Corporation ). In May 2013, she attended a conference conducted by the International Council of Nurses and presented a paper entitled, I am not a racist but. Prior to the conference, Ms Morunga had a discussion with her manager and advised she was intending to present her paper at the conference. After the manager spoke to the General Manager of the Corporation, Ms Morunga was advised that the Corporation was unsupportive of her presenting the paper at the Conference and she must not identify as a Corporation employee or mention the region in 4 Justitia Lawyers & Consultants 2014

5 which she worked. Ms Morunga attended the conference as an independent professional, took approved leave to cover her absence from work and paid the costs associated with attending the conference. During her presentation, she did not refer to the Corporation or the region in which she worked. Subsequently, a journalist at a nursing journal reported on Ms Morunga s presentation. The journalist s article attributed comments to Ms Morunga regarding racism that Ms Morunga did not actually say. After the release of the article, the General Manager of the Corporation accused Ms Morunga of bringing the Corporation into disrepute and dragging the community s name through the mud. For these reasons Ms Morunga was dismissed on 3 September Ms Morunga made an unfair dismissal application to the Commission on the basis that she was dismissed due to the statement that was erroneously attributed to her by the nursing journal. The journalist who wrote the article provided a witness statement in which she agreed that the comments attributed to Ms Morunga were not a direct quote, but a summary of what she understood Ms Morunga to be saying. The journalist also stated that whilst she did not speak to Ms Morunga before the article was published, she now knows that Ms Morunga would have requested changes to the content of the article if she had known about it in advance. The Corporation did not object to the journalist s witness statement and it was accepted by VP Lawler without qualification. Whilst Ms Morunga s letter of dismissal was based on the statement erroneously attributed to her in the article, at the hearing the Corporation placed reliance on other issues for Ms Morunga s dismissal. The Corporation argued that Ms Morunga ignored a specific instruction by her manager directing her not to give the presentation, and that Ms Morunga was aware that on two previous occasions employees of the Corporation had spoken at conferences and on each occasion board approval had been required. The Corporation also stated that Ms Morunga breached the Corporation s Media Policy. The Corporation claim that Ms Morunga should have been aware of the policy as it is a standard part of staff induction. In accepting Ms Morunga s application, VP Lawler described the Corporation s treatment of Ms Morunga as ignorant and 5 Justitia Lawyers & Consultants 2014

6 highhanded. The Vice President did not agree that Ms Morunga was directed not to give the presentation. His Honour found that the only constraints on Ms Morunga were that she not identify as a Corporation employee or mention the area in which she worked. VP Lawler accepted Ms Morunga s evidence that she had no knowledge of either the instances where board approval was given before the presentations or of the Corporation s Media Policy. It followed that VP Lawler found there was no valid reason for the dismissal of Ms Morunga. As Ms Morunga did not wish to return to work at the Corporation, the VP Lawler awarded Ms Morunga compensation of $25, made up of lost salary, superannuation contributions and annual leave accrual. Sharon Morunga v Anyingyi Health Aboriginal Corporation [2014] FWC 997 Lesson for Employers When dismissing an employee, employers should ensure that they have clear and coherent reasons for the dismissal. The reasons should be evidence based. Return to work and employer doctor The Fair Work Commission has found that BHP Coal had a valid reason to dismiss an employee who attempted to return to work at its Peak Downs Mine on the basis that he refused to comply with a lawful and reasonable direction to attend medical assessments with the company s chosen specialist. The decision indicates that the Commission is prepared to uphold an employer s right to require that an employee returning from a lengthy injury-related absence obtain a medical clearance from a doctor nominated by the employer. The employee first injured his shoulder at work in October He subsequently suffered further injuries to his shoulder both at work and at home, culminating in shoulder stabilisation surgery in September In July 2012, he proceeded on a period of extended sick leave. 6 Justitia Lawyers & Consultants 2014

7 In March 2013 he received a medical certificate, from the orthopaedic surgeon who operated on his shoulder, stating that he was fit to return to full normal duties and subsequently attended for work on 2 April On the employee s return to work he was informed by his manager that he would be required to do a functional assessment test before commencing duties. The employee was directed to attend an appointment with an occupational physician who had knowledge of BHP Coal s operations. The employee refused to attend this appointment and again refused to attend the appointment when it was rescheduled. Following an investigation into the employee s refusal to attend the assessment, BHP Coal dismissed the employee. BHP Coal relied on a number of reasons for the dismissal, including the employee s failure to cooperate with the investigation interview and his attempts to record conversations without the consent of the individuals concerned. In this article we concentrate on the principal reason for the employee s dismissal: his refusal to attend the appointments with the doctor nominated by BHP Coal. The issue for determination by Commissioner Spencer was whether the direction given to the employee to attend the medical assessments was lawful and reasonable. Commissioner Spencer referred to the health and safety obligations on coal mine workers under the Coal Mining Safety and Health Act 1999 (Qld) ( the Coal Act ). By operation of the Coal Act, the employee s manager was obliged to take action to ensure the health and safety of the workers with whom the employee would work with at the Mine, and the employee himself. The direction to obtain a functionality assessment was therefore lawful in the circumstances. On the question of whether the direction was reasonable, Commissioner Spencer noted that the medical information provided to BHP Coal by the employee regarding his condition was quite insufficient and generic. The employee had only supplied general medical certificates that failed to specify the injury or any restrictions on his capacity to perform his particular duties as a boilermaker at the Mine. It was reasonable for BHP Coal to require more specific medical information to satisfy itself that the employee could safely perform his duties. Furthermore, given BHP Coal s statutory obligations under the Coal Act 7 Justitia Lawyers & Consultants 2014

8 to ensure the health and safety of the employee and anyone working with him, it was reasonable for BHP Coal to require the employee to attend a specialist of its choosing. BHP Coal relied upon the opinion of the specialist they chose because he was specifically trained as an occupational physician and was familiar with BHP Coal s operations. Commissioner Spencer noted, however, that BHP Coal could have better managed the employee s return to work and the subsequent issues that arose. The Commissioner identified that the company could have done more to provide the employee with information he requested regarding the reasons why he was being asked to take part in a further medical assessment. It was also evident that BHP Coal had not taken any steps, during the employee s absence from work, to engage in discussion with the employee about his absence or to prepare for his return to work. Notwithstanding the apparent shortfalls in BHP Coal s management of the employee, Commissioner Spencer concluded that the company had a valid reason to dismiss the employee when he refused to attend the medical assessments. The employee did not succeed in his application for unfair dismissal. Mr Darrin Grant v BHP Coal Pty Ltd [2014] FWC 1712 Lessons for Employers To satisfy obligations under health and safety legislation, employers can require that an employee provide sufficient medical information to satisfy the employer that they are fit to return to work. In certain circumstances, it may be reasonable for an employer to direct an employee to obtain a medical assessment from a doctor nominated by the employer. The reasons for any such requirement should be explained in writing to the employee concerned. Employers should take steps to maintain communication with employees who are absent from work due to injury for an extended period of time to ensure that they are adequately prepared for the employee s return to work. 8 Justitia Lawyers & Consultants 2014

9 If you require legal advice on the information contained within this Justitia Update, please contact: Mary-Jane Ierodiaconou Managing Partner Sarah Rey Partner Julie White Special Counsel Nandi Segbedzi Special Counsel Magda Marciniak Senior Associate Sue Mitra Senior Associate Alexandra Boudrie Senior Associate Laura Douglas Lawyer Nawal Ismail Lawyer J U S T I T I A L AW Y E R S & C O N S U L T AN T S Level 5, 45 William Street, Melbourne 3000 GPO Box 4522, Melbourne 3001 p f justitia.com.au Tower A, Level 5, 7 London Circuit, Canberra 2601 p f JUSTITIA UPDATE provides information on topics of interest. It is not intended to be a substitute for legal advice. Legal advice should be obtained in relation to specific circumstances. Liability will not be accepted for any loss flowing from reliance upon the information provided in this Justitia Update. 9 Justitia Lawyers & Consultants 2014