The Fair Work Commission (‘Commission’ or ‘FWC’) has recently found that a teacher whose employment was terminated following a contentious, year-long recovery from a psychological injury sustained at work, was not unfairly dismissed, despite providing the employer with a medical certificate indicating that she had “full” capacity to return to work.

Background

The unfair dismissal application was made by a teacher at Nagle Catholic College (‘Teacher’) in Western Australia, following a psychological injury caused by a schoolyard incident in which the Teacher was struck with an acorn and a ball, allegedly thrown by two students. Her employer, Catholic Education Western Australia Limited (‘CEWA’) accepted liability for the incident and the Teacher had a worker’s compensation claim accepted by CEWA’s insurer.

The Teacher subsequently spent the next 12 months either absent from work, or on a graduated return to work program working, at times, between 6-18 hours per week. In deliberating on this matter, Deputy President Binet of the FWC was required to consider multiple medical certificates and reports from four different medical practitioners issued over the course of the year.

Medical Certificates & Return to Work

The first medical certificate was issued on 8 June 2020 for a period of 7 days by Dr Fatima Himy. The Teacher subsequently made an application for worker’s compensation in relation to the injury which was accepted from 22 June 2020.

Relevantly, in early August , the Teacher, being unsatisfied with CEWA’s handling of the incidents that led to her injury, made a complaint to WorkSafe WA. CEWA was subsequently investigated and issued with two improvement notices by WorkSafe WA in relation to their response and handling of psychological injury hazards.

The first change to the Teacher’s capacity came in late August when she began paid employment as a swim teacher.  She was certified fit to work up to 6 hours per week by Dr Himy on 3 September 2020. This led to the first return to work plan issued by the Teacher’s rehabilitation provider on 11 September for 2 to 6 hours a week. A progress report from the rehabilitation provider on 13 September 2020 noted the Teacher continued to experience ongoing psychological symptoms.

In October 2020, the Teacher commenced a graduated return to work program at the school while continuing to receive psychological treatment. Between October 2020 and 10 June 2021, the Teacher provided 11 medical certificates and 9 rehabilitation reports from 4 different doctors and 2 rehabilitation providers. The certificates and reports determined that the Teacher had varying levels of capacity, ranging from 11 hours per week up to 18 hours per week, before returning to no capacity for  a period, and then finally increasing to 18.5 hours per week.

Show Cause Process

In a critical medical report on 18 May 2021, which was ultimately relied on by CEWA, psychiatrist and medico-legal expert Dr Tavasoli stated that the Teacher’s treatments over the previous 6 months did not “appear to have led to a significant improvement in her depressive symptoms” and that she was not fit to return to work full-time.

Following the 12-month anniversary of the Teacher’s injury, CEWA held a meeting on 21 June 2021 in which they asked the Teacher to show cause as to why they should not terminate her employment in light of Dr Tavasoli’s report on her condition and progress, which made it evident that she was not going to return to full-time duties within a reasonable period of time. During the show cause meeting, the Teacher said that she ‘hoped’ to return to full capacity by the start of 2022.

Within three days of the show cause meeting, the Teacher was suddenly assessed by her latest general practitioner, Dr Douglas, as going from 18.5 hours per week capacity to “full” capacity. CEWA was concerned by the sudden change in the Teacher’s work capacity, particularly so in circumstances where:

1. the Teacher had limited progress in the prior 6 months;
2. Dr Douglas’s certificate acknowledged the Teacher still required regular counselling and medication; and
3. the certification contradicted Dr Tavasoli’s report which noted limited progress, without providing medical evidence to dispute it.

In giving evidence on his decision-making process, the school’s Principal reflected that he weighed the conflicting evidence before him and gave weight to Dr Tavasoli’s report, given the fact that Dr Tavasoli was a psychiatrist trained to diagnose mental health conditions, whereas Dr Douglas was a general practitioner with qualifications in obstetrics.

Termination

Having weighed the medical evidence available, CEWA terminated the Teacher’s employment on 2 July 2021.  The reasons for the termination were:

• there was no evidence to support a ‘clear goal’ on full recovery; and
• CEWA had been subject of WorkSafe WA’s improvement notices which required it to pay particular care in respect of its duty of care in relation to psychological injury hazards.

CEWA stated that overall, the medical evidence did not instil any confidence in the Teacher’s ability to safely undertake the inherent requirements of her position.

The Teacher subsequently attempted to undertake work at another school but suffered a deterioration in her condition, which led her to seek employment in another industry.

Unfair Dismissal Claim

Valid reason

The Teacher filed an unfair dismissal application on 23 July 2021. In Deputy President Binet’s decision, there was a strong focus on whether or not the facts gave rise to a valid reason for the Teacher’s employment to be terminated. In response to CEWA’s reasons for terminating her employment, the Teacher submitted that there was no valid reason because:

• the reason she was absent from work was because she had sustained an injury at work for which her employer accepted liability;
• she engaged in good faith in a return to work program, including undergoing psychological and pharmaceutical treatment;
• the medical evidence demonstrated a trajectory towards recovery;
• she had no opportunity to respond to the assertion that she was unfit and unsafe to perform her role, which was raised in the termination letter but not the show cause notice; and
• she provided evidence that she was fit to return to work in a full time capacity but was not permitted to do so.

Central to Deputy President Binet’s reasoning was the consistency of a large volume of medical evidence showing that the Teacher’s symptoms persisted, and worsened from time to time.  It was noted that not only had there been no significant increase in her capacity in the 6 months prior, there was actually a decline for a period of time.

The Deputy President also accepted CEWA’s arguments that more weight should be given to Dr Tavasoli’s report over Dr Douglas’, noting the difference in expertise and particularly that there was no evidence to impugn the objectivity or accuracy of Dr Tavasoli’s opinion. It was also noted that Dr Douglas’ “full” capacity certification was not unqualified, as it indicated that the Teacher still required counselling and medication. In witness evidence at trial, Dr Douglas also sought to characterise the certificate as a recommendation that the Teacher could engage in a “trial” of returning to full capacity, notwithstanding this was not referred in his certificate.

In accepting CEWA had sufficiently engaged with the Teacher over an extensive period of time to support her return to work, Deputy President Binet found CEWA had a valid reason to terminate her employment.

Key take-aways for employers

This decision demonstrates that employers are entitled to, and should, critically assess medical evidence when assessing an employee’s actual capacity to return to work.  Employers are not compelled to simply accept medical evidence without question, particularly in suspicious circumstances such as these.  Where there is contradictory medical evidence, employer’s should seek legal advice before determining which medical evidence to accept, or whether further medical evidence is required, and before making decisions that pertain to the injured employee’s employment.

A key strength of CEWA’s defence of their decision to terminate the employment in this case was their support of a return-to-work program for the employee, and over an extensive period of time. This supportive approach, together with the application of procedural fairness in the dismissal, by allowing the employee an opportunity to respond to the reason for the dismissal, avoided an unnecessary finding that the dismissal was harsh, unjust or unreasonable, notwithstanding that there was a valid reason for the dismissal.

If you require advice on managing an employee’s return-to-work following an injury, or are contemplating dismissing an injured or recovering employee, you should strongly consider contacting the specialist employment lawyers at Aitken Legal to discuss your circumstances.