Managing ill employees is no easy task.

For instance, what do you do if your employee is absent from work due to illness for days, weeks or even months on end?

When can you request that the employee give you more detailed medical information to help you understand the illness and their capacity for work?

What is the process you need to follow in managing such situations?

When can you direct the employee to attend an Independent Medical Examination (IME)?

What do you do if your employee turns around and says you are bullying and harassing them about their illness?

When can you move to terminate the employee’s employment on the basis that they cannot fulfill the inherent requirements of the position?

These are all common questions that arise when an employee is absent from work on personal leave for some unknown length of time.

A recent decision of the Fair Work Commission (FWC) has shed some light on these issues and serves as a useful reminder for employers on their obligations when managing ill workers.

In Linda Duckham v The Royal Children’s Hospital [2019] the FWC found that an employer did not bully or harass its employee by repeatedly asking her to supply it with medical information.

The FWC also found that the employer had a valid reason to dismiss her.

The employee (who was employed as a Medical Scientist since April 2001) commenced personal leave on 31 July 2017 and remained on personal leave until the termination of her employment on 15 August 2018 (i.e. a period of over 1 year).

Her employment was terminated on the basis that she was unable to perform the inherent requirements of her pre-injury role.

Relevant facts of the case

• After 17 days of personal leave, the employer wrote to the employee and requested that she provide them with updated medical information to assist them with safely supporting her return to work. They also enclosed a letter that she was to provide to her GP, which requested medical information about her diagnosis, her workplace restrictions and tips on how they could provide a safe work environment specific to her needs. The employee, on advice from her union, did not comply.

• A few days later the employee provided the employer with a Certificate of Capacity by WorkSafe Victoria (similar to a worker’s compensation medical certificate in Queensland) in which her doctor assessed her as having no capacity for work for approximately 1 month. The Certificate of Capacity stated that the clinical diagnosis was depression and anxiety secondary to workplace harassment, reportedly dating back 5 years.

• The employee proceeded to supply the employer with a renewed Certificate of Capacity every month from then on, with the effect that she was unfit for work.

• In October 2017 (three months into the employee’s period of personal leave), the employer sent a further letter to the employee, directing her to attend an IME. The employer warned that a failure to attend the IME may result in disciplinary action. The employee, on advice from her union, did not comply.

• The employee then claimed that the employer’s direction to attend an IME or else face disciplinary action caused her great stress and further aggravated her anxiety and depression.

• Two months later, the employer lodged an application with the FWC to try and resolve the ongoing dispute with the employee regarding her failure to provide further medical information.

• A series of conferences were held between the parties. Following the first conference, the employee’s medical practitioner provided to the employer a one-page medical report, with very limited information. The employer again wrote to the employee and requested that she supply them with the requested medical information or otherwise her employment would be reviewed. The employee did not comply.

• The employer wrote to the employee informing her that they were in the process of reviewing her employment which may include termination of employment. She was again invited to supply any additional medical information that she wished for the employer to take into consideration.

• Finally, on 15 August 2018, the employer sent a letter of termination to the employee informing her that based on the limited medical information available, it appeared that she was unable to perform the inherent requirements of her role and as such, her employment was terminated with effect from 20 August 2018.

• The employee then filed an unfair dismissal claim, claiming that her incapacity for work was caused by the employer’s failure to provide her with a safe work environment.  The unsafe elements were alleged to be a result of:  the employer’s HR Manager having yelled at the employee in front of colleagues; the employer failing to provide sufficient training; providing incorrect direction and advice; and continually pulling the employee into impromptu meetings (which the employee presumably considered to be unreasonable). It was the employee’s case that if the employer addressed the unsafe work environment then she could perform the inherent requirements of her role.  She also claimed that the direction for her to attend an IME was unreasonable and amounted to bullying and harassment because she was already attending one as part of her WorkSafe claim.

FWC findings

In finding in favour of the employer, the FWC noted:

• The employee had unsatisfactory material to prove that the employer had failed to provide a safe working environment. The Commissioner commented “If this sort of evidence is sufficient to enable a finding that the employer failed to maintain a safe workplace, it is possible that many or even most workplaces could be so found simply by any employee or a group of employees making general accusations….”.

• The employer’s communications with the employee were clearly reasonable attempts to obtain information about her health. Just because she had an emotional reaction to those attempts did not mean they constituted bullying or harassment. The Commissioner said “It is perhaps understandable that [the employee] would have an emotional reaction to the respondent’s requests for information, but that does not make the respondent’s actions unreasonable. In particular, I do not agree that the various respondent requests for medical information were ‘bullying’ or ‘harassment’. They were simply an employer doing its job to ascertain the medical fitness of an employee…”.

• Based on the available evidence, as at the date of termination, the employee did not have capacity to work; the prognosis for her recovery was unknown; and there was no evidence to suggest that any reasonable adjustments would make a material difference.

• The employer therefore had a valid reason to dismiss the employee, namely that she did not have capacity to perform the inherent requirements of her role.

• Further, the employer afforded the employee procedural fairness when terminating her employment. She was notified of the reason for dismissal in a letter of termination. She was given various opportunities to respond to the letters the employer previously sent her in the lead up to her dismissal.  The employer took reasonable steps to support the employee, including making a reasonable request for medical information; directing her to attend an IME; and carefully reviewing the limited medical information made available to it before making a decision to terminate.

Considering all of the above, the FWC held that the employer’s actions in requesting medical information from the employee were reasonable and the eventual decision to terminate her employment was fair.

Lessons for employers

Some of the factors that worked in favour of the employer were:

• They communicated with the employee in a fair and transparent manner;

• They had a proper basis for requiring further medical information about the employee’s fitness for work (i.e. her extended and ongoing absence);

• They required the additional medical information in order to properly discharge their legal obligations owed to the employee;

• When informal requests for medical information failed, the employer made a reasonable request for the employee to attend an IME;

• They tried to mediate the dispute with the employee through the FWC dispute resolution process;

• They notified the employee of the risks of her failing to comply with reasonable and lawful directions; and

• They afforded the employee procedural fairness in the process which culminated in the termination of her employment.

This case highlights the importance for employers to follow a fair and reasonable process when managing ill or injured employees.

Employers have a right to request information to determine an employee’s fitness for work and whether they will be able to return to work in the foreseeable future to perform the inherent requirements of their pre-injury or pre-illness position.

It is essential however, that employers engage in a reasonable management process when doing so.

Contact us for assistance

Given the complexities of this and the risks associated with getting it wrong, we strongly recommend that employers obtain specialist employment law advice before proceeding.

The team of lawyers at Aitken Legal can assist you with this.