How does an employer deal with onerous return to work adjustments? Should an employer be taken to know that an employee is mentally ill when taking disciplinary action? Can an employer question a medical certificate?  These were some of the many challenges faced by the employer in Kubat v Northern Health [1].

In this Alert, Andrew Tobin and Adele Garnett discuss this recent case and consider implications for managing employees with illnesses whose circumstances are complicated by poor behaviour and onerous return to work adjustments.

Background

Ms Kubat commenced as an interpreter in a hospital in April 2011.  In early 2012, she made a number of requests for leave without pay to travel to Turkey for two months in September/October 2012, however, this request was eventually refused in May 2012. Also around that time, her managers began having concerns about Ms Kubat’s punctuality and reliability, and in July 2012, she was given a written warning in relation to this.

On 13 August 2012, Ms Kubat provided a medical certificate dated 6 August 2012 stating that she would need medical leave from 1 September 2012 to 31 October 2012 so that she could be in Turkey for her father’s second death anniversary. A meeting between Ms Kubat and management was held on 14 August 2012 where the medical certificate was questioned.

Following that meeting, Ms Kubat called in sick for two days until she went on a pre-planned holiday to Hawaii until the 26 August 2012.  Ms Kubat also called in sick for the week of 27 August 2012 on her return from holidays and then went on unpaid sick leave from 1 September 2012 until 31 October 2012 as per her medical certificate.

Ms Kubat did not return to work after this but made a WorkCover claim (which was ultimately rejected) indicating that she was suffering from depression.  Ms Kubat remained off work until July 2013 when she requested to return to work.  The employer then sent Ms Kubat to an independent medical assessment which reported that she required certain adjustments, including that she initially work just half a day a week and that all unnecessary conflict or stress should be avoided.  The employer determined that these restrictive requirements for her return to work could not be met, and eventually, Ms Kubat was dismissed in May 2014 due to her inability to safely perform the inherent requirements of her position. 

Ms Kubat subsequently commenced a general protections claim against her employer for taking various adverse actions against her due, allegedly, to her mental disability including:

  • giving her a warning in July 2012;
  • questioning the medical certificate of 6 August 2012;
  • not accommodating her return to work; and
  • terminating her employment.

Should an employer, in the absence of specific information, be taken to know that an employee is mentally ill when taking disciplinary action?

Ms Kubat claimed that the warning she was given in July 2012 due to her punctuality and reliability was adverse action taken against her because of a disability, namely depression.  However, at that point in time, she had not informed management that she was suffering from depression, but had said that she was “not right in herself” and that she had personal issues.  She also cried during the meeting where she was given the warning. Ms Kubat claimed that the employer should have known and did know of her depression.

Judge Riley held that it was reasonable for the employer to claim not to be aware of her mental illness because Ms Kubat did not effectively communicate that she was suffering from depression.  Her Honour stated that “personal issues” and “not being right” in oneself are “vague and general concepts and can refer to a broad range of things” and that while being tearful can be an indicator of depression, it is also not an uncommon reaction to a disciplinary meeting.

It was therefore found that the employer did not take adverse action against Ms Kubat due to her depression because they were not aware of her depression until she made the WorkCover claim, some months after she was given the warning.

Is it reasonable to question a medical certificate?

Ms Kubat also claimed that adverse action was taken against her when her medical certificate was questioned in August 2012 because at that point, she “ceased to be a trusted employee”.

However, Judge Riley found that it was entirely reasonable for the employer to question the medical certificate of 6 August 2012 in circumstances where:

  • Ms Kubat appeared to be fit for work between 6 August and 1 September 2012 (the certificate covered the dates of 1 September to 30 October 2012);
  • Ms Kubat was due to go on a holiday to Hawaii from 17 to 26 August 2012; and
  • There was no suggestion of surgery or anything else which would explain the illness.

It is also of note that Ms Kubat’s leave without pay request for the same or similar period had been rejected earlier in the year.

Judge Riley further found that questioning a medical certificate was not adverse action as it did not alter Ms Kubat’s position to her prejudice – any issues of trust came from the circumstances surrounding the medical certificate, not from the questioning of the certificate.

How does an employer deal with onerous return to work adjustments?

As stated above, an independent medical assessment was conducted when Ms Kubat informed her employer in July 2013 that she wanted to return to work. The medical report produced stated that she would be able to return to work for half a day a week but that all unnecessary conflict or stress should be avoided.

On recognising how difficult it would be to provide Ms Kubat with half a day a week of work in an environment where conflict and stress would be avoided, the employer wrote to the physician with further questions about Ms Kubat’s work capacity.  The employer explained the environment in which Ms Kubat worked, stating that the information she was required in her job to interpret was often sensitive; patient responses could be unpredictable, and; for these reasons, it was not possible to provide an environment with no conflict or stress.

However the physician maintained that exposure to stressful situations would prove counterproductive to Ms Kubat’s recovery.  Because of the onerous requirement to provide a stress-free environment, the employer informed Ms Kubat that it could not accommodate her return to work.

In her general protections case, Ms Kubat argued that the employer took adverse action against her – again, because of her disability – by not allowing her to return to work and subsequently terminating her employment. 

However, Judge Riley accepted the employer’s response that it did not allow Ms Kubat to return to work; not because of her disability, but because she was unable to fulfil the inherent requirements of her role.  Her Honour found that the employer could not provide an environment where difficult or stressful situations were completely avoided and therefore it was reasonable for the employer not to return Ms Kubat to work and, ultimately, to terminate her employment. It was further accepted that the employer had a duty of care both to its patients to ensure appropriate interpreting services and to Ms Kubat not to expose her to an environment which might exacerbate her depression.  So safety considerations also justified the dismissal.

Key take away points

  • If an employee, when given the opportunity, does not inform an employer of a mental illness, it is not unreasonable or unlawful for the employer to take disciplinary action against the employee in appropriate circumstances.

However, previous case law indicates that it would be prudent for an employer to investigate further if there are obvious signs of mental illness.  This may include initially asking the employee if they have any health concerns which may be impacting on their performance and then, depending on the response, requesting further medical information either from a treating practitioner (with the employee’s consent) or from an independent specialist.

  • In suspicious circumstances or where a medical certificate is unclear, it is reasonable for an employer to question a medical certificate.  It may be necessary to ask more detailed questions of the treating practitioner (with the employee’s consent) or seek additional medical information from an independent specialist.
  • Employers do not have to accommodate onerous adjustments when an employee is returning to work from illness or injury, eg, a requirement to provide a stress and conflict free workplace in an inherently unpredictable environment.  This is particularly the case where there might be a risk of exacerbation of the illness/injury or where there is a risk to others in the workplace.

Managing employees who are ill or injured can be very difficult, particularly in circumstances where there is poor performance and mental illness.