Lion Dairy v Norman [2016] FWCFB 1887

In April 2015, Lion Dairy dismissed an employee on the basis that he could not fulfil the inherent requirements of his job. The employee had been employed as a maintenance technician and was injured in a sky-diving accident more than 12 months earlier. He had not attended work since then.

In March 2015, Dr Graham, an independent occupational physician, had reviewed the employee’s job description, assessed the employee, and provided a report to Lion Dairy stating it was unlikely the employee would be able to perform the inherent requirements of his position in the near future. Three weeks later, the employee provided a medical certificate from a Professor Jaarsma clearing him to return to work on 30 March 2015. As a result, Lion Dairy requested Dr Graham review his opinion. Dr Graham confirmed his original view. Lion Dairy then asked the employee for permission to speak to Professor Jaarsma. This request was denied. Lion Dairy therefore dismissed the employee (after going through a show cause process) because he could not fulfil the inherent requirements of his position.

Initially, the Fair Work Commission found the employee had been unfairly dismissed, preferring Professor Jaarsma’s evidence over that of Dr Graham’s. However, this decision was overturned by a Full Bench, which found that an employer is entitled, and expected, to rely on expert medical assessments. ‘The most relevant and comprehensive medical advice’ can provide an evidentiary basis for an employer to form a defensible view that an employee cannot perform the inherent requirements of their job – even with reasonable adjustments. This can provide a valid reason for dismissal. The only medical professional who assessed the employee’s overall capacity to fulfil the requirements of the job was Dr Graham.

The Full Bench stated that where there is contrary medical evidence the employer needs to take this into account and resolve any evidentiary conflict. Lion Dairy did this by asking Dr Graham to conduct a reassessment with the benefit of Professor Jaarsma’s medical certificate and by attempting to contact Professor Jaarsma.

This case is an important reminder that employers:

  1. are entitled to rely on expert medical assessments when dismissing an employee 
  2. need to take conflicting medical evidence seriously and take steps to resolve the conflict.