Court sheds light on what medical evidence is acceptable for capacity and fitness assessments
8 July 2020 by Andrew Douglas
The Department of Agriculture and Fisheries (Department) directed one of its workers, Mr Erian, to attend an independent medical assessment (IMA) which concluded Mr Erian was unfit to return to work in the public sector for various reasons, including “his paranoia, anxiety and mistrust of the” Department.
The Department advised Mr Erian it was considering retiring him on ill health grounds and provided him two weeks to respond. Mr Erian did not respond and obtained a medical report from his treating practitioner citing his fitness to return to work if redeployed. He did not notify the Department nor provide it with a copy.
Two months later, the Department advised Mr Erian it decided to retire him on ill-health grounds and provided him seven days’ notice. Mr Erian did not respond. Approximately five weeks after the termination took effect, Mr Erian obtained a medical report from an independent psychiatrist citing his fitness to return to his former role. He did not notify the Department nor provide it with a copy.
Mr Erian then applied for reinstatement on the basis of the two further medical reports. At first instance, the Commissioner held the dismissal was not unfair because the only relevant medical evidence was that which was available to the Department at the time the decision was made.
On appeal, the Industrial Court of Queensland (IQC) confirmed the further medical evidence could be relevant as its relevancy was not objected to by the Department during the hearing at the Commission. However, the evidence of the treating doctor was not sufficiently independent, and the treating Psychiatrist evidence failed to deal with his mental state at the time the decision to terminate was being contemplated-so wasn’t relevant in fact. The IQC held the dismissal was not unfair on the basis that the only acceptable medical evidence was that obtained through the IMA.
- Difficult employees create difficult law. Mr Erian refused to show his medical evidence at the appropriate time. The Courts wrestled with his odd behaviour. However, best practice in getting an IME is to offer the affected employee the opportunity for the doctor conducting the IME to speak with the person’s treating doctor. Had that have occurred here Mr Erian’s case would have died in the water. It also means the employer would hold the best evidence before a decision is made.
- The critical evidence in these circumstances is the evidence that considers the employee’s capacity or fitness when termination is contemplated. The three questions that must be answered are:
- Are they fit for the inherent requirements of their role now?
- If not, what reasonable adjustments can be made to allow them to do the inherent requirements of their role?
- Will they be fit in the foreseeable future with reasonable adjustments?
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