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Workplace Relations Alert

The right to remain silent

Can you dismiss an employee for failing to supply medical information?

In Columbine v The GEO Group Australia Pty Ltd [2014]  FWC 6604, the Fair Work Commission was asked to consider whether an employee’s failure to comply with an employer’s requests for medical information could be a valid reason for dismissal.

The facts

Ms Columbine was employed by GEO as a correctional officer at the Fulham Correctional Centre in Sale, Victoria. Following absences in 2011 due to work-related injuries, Ms Columbine returned on modified duties in an administrative role.

In March 2014, Ms Columbine was advised by GEO that her administrative position was no longer required, and that there were no redeployment options because of her medical restrictions.

Ms Columbine then asked to return to working as a correctional officer on reduced hours and with limited duties taking into account her medical restrictions. She supported this request with a medical certificate.

GEO advised Ms Columbine that she was unable to fulfil the inherent requirements of the correctional officer position based on her medical restrictions. However, GEO invited Ms Columbine to provide any other information which might be relevant to GEO making a decision about whether to terminate her employment on account of redundancy.

Ms Columbine responded by email that she had “been given the all clear” by her treating doctor to work on an unrestricted basis, and she produced a new supporting medical certificate to this effect.

In an attempt to understand this sudden turnaround in Ms Columbine’s condition, GEO requested that Ms Columbine provide a medical report from her treating doctor, together with an authority permitting GEO to liaise with the doctor directly.

Ms Columbine produced a brief report from her treating doctor, but she failed to provide authority for GEO to speak to the doctor.   Ms Columbine’s employment was subsequently terminated on the basis that she had failed to provide the information that GEO had requested, and that she had failed to take reasonable steps to ensure her health and safety (as well as that of others) in the workplace.

Ms Columbine then lodged an unfair dismissal claim with the Fair Work Commission.

The decision

The Commission found that the termination was fair, on the basis that Ms Columbine had an obligation to provide GEO with the information it required to determine if she could undertake the inherent requirements of her position. Ms Columbine’s failure to do so created a valid reason for dismissal.

Commissioner Bissett considered that the report which was produced by Ms Columbine’s doctor was inadequate and did not explain why the doctor’s opinion of Ms Columbine’s physical limitations had changed only when she was at risk of being dismissed. Between this, and Ms Columbine failing to allow GEO to consult with her treating doctor, the Commission held that Ms Columbine had failed to engage with GEO about its health and safety concerns surrounding her proposed return to work.

Commissioner Bissett noted that “[a] request to Ms Columbine that she assist GEO in reaching the satisfaction necessary for it to be confident that her return to work would not create a health and safety risk to herself and others… cannot be construed as an unreasonable direction.” On this basis and noting GEO’s workplace health and safety obligations, the Commissioner found that GEO’s request for an authority to liaise directly with Ms Columbine’s doctor was also reasonable. 

Lessons for employers

Employers managing the return to work of injured employees must be acutely aware of their workplace health and safety and WorkCover obligations. Employers should ensure that they are asking the right questions to reasonably satisfy themselves that an employee is properly fit for their duties (and if not, whether reasonable modified duties would suffice to allow the employee to return to work).

This decision suggests that an employer may be allowed to fairly dismiss an employee who refuses to reasonably discuss issues regarding their return to work following an injury. However, there are considerable risks if the process followed by the employer is not perfect. Employers should therefore always seek legal advice before contemplating negative action towards an employee who is returning to work (or refusing to do so).

Please contact the Workplace Relations, Employment and Safety Team if you would like to discuss this alert.