This case serves as an important reminder for employers to rely on facts, not assumptions, when considering an employee’s capacity to fulfil the inherent requirements of their role.

BACKGROUND

Danielle Logan was diagnosed with Multiple Sclerosis (MS) prior to the commencement of her employment as a nurse with Knoxfield Medical Centre (KMC) in April 2009.

In May 2016, KMC’s practice manager expressed concerns that Ms Logan’s medical condition was deteriorating and raised the prospect of Ms Logan undertaking an independent medical examination (IME) to assess her ability to perform the inherent requirements of her role.

Ms Logan provided KMC with a report from her neurologist that noted that she was safe to be around patients. Subsequent enquiries by the Australian Health Professionals Regulatory Body confirmed that Ms Logan could continue to work with patients.

In October and November 2016, KMC put allegations to Ms Logan regarding her conduct and alleged that she could no longer fulfil the inherent requirements of her role. KMC provided Ms Logan with an updated Position Description (PD) that restricted her to administrative work. Ms Logan declined to sign this PD.

KMC made several requests for Ms Logan to attend an IME but this was never arranged.

In early 2017, KMC confirmed that Ms Logan’s PD had been permanently amended and her employment would no longer be tenable if she declined to sign the revised PD and declined the request for an IME. Ms Logan’s employment was terminated by KMC due to its concerns over her capacity to safely carry out her duties and its inability to find suitable duties for Ms Logan to reliably perform.

Ms Logan filed an application with the Fair Work Commission alleging unfair dismissal.

In determining the matter, Deputy President Masson applied the Full Bench’s decision in Lion Dairy[2] including that:

‘Capacity cases based on medical opinions are different to misconduct cases. In capacity cases the employer is usually required to have regard to an expert opinion or opinions – not to make an independent assessment of what is essentially a medical question.’

The Commission noted that one of the challenges of this case was the lack of medical evidence that was presented by either party.

KMC sought to rely on the evidence of two doctors who worked alongside Ms Logan. The doctors gave their views of Ms Logan’s symptoms that they had observed in her day to day work. Both doctors noted they would refer a patient with MS to a specialist. Neither doctor treated Ms Logan in respect of her MS.

The Commission found that there was no evidence that Ms Logan had refused to participate in an IME, rather, KMC had not been able to arrange one.

The Commission was not satisfied that, at the time of Ms Logan’s dismissal, there was ‘a clear finding by an appropriate medical practitioner that the employee cannot perform the inherent requirements of the job‘ and therefore it was not satisfied that the medical evidence available supported a finding that Ms Logan was not capable of performing the inherent requirements of her role at the time of her dismissal.

The Commission also reviewed a large number of incidents where Ms Logan was alleged to have failed to perform her duties satisfactorily. The Commission determined that, on the basis of these incidents, KMC had a valid reason for terminating Ms Logan’s employment. However, the Commission also determined that the dismissal was unfair, as KMC had failed to provide Ms Logan with warnings regarding her conduct or with an opportunity to respond to the reasons for her dismissal.

The Commission rejected Ms Logan’s bid to be reinstated because it was not satisfied that she was capable of returning to her former position based on the incidents that occurred prior to the termination of her employment. The Commission awarded Ms Logan $4,240 in compensation.

LESSONS FOR EMPLOYERS

  • employers should act on the basis of independent medical reports and information when contemplating the termination of an employee’s employment due to reduced capacity
  • when considering if an employee can no longer perform the inherent requirements of their role, an employer can direct an employee to participate in an IME
  • employers have obligations under anti-discrimination and safety legislation, among others, to employees who disclose a medical condition to the employer.