Andrew Douglas: Main topic, because this really talks about everything that you and I have started earlier on with Monash Health. I just couldn’t resist getting stuck into it. This is Leslie and Bungree Aboriginal Health and Association. The reason we got this case is it is a beautiful re-articulation of what are those Toyota and Sturgio’s obligation. Again, the facts are not terribly important in this case. But what happened is there was a termination that arose and what was demonstrated is, you know, what is the right process that occurs? Once the employer forms a view that someone’s not fit for the inherent requirements, what do you got to do? Well, you’ve got to get them assessed.

That’s got to be objectively done and you’ve got to advise them if they’re not fit at that stage, they may lose their job if we can’t find reasonable adjustments. The assessment proceeds and it comes back and says not fit now or in the foreseeable future. Not fit for reasonable duties. The person must have a proper opportunity to respond to that and to actually articulate against it. And so this case is not a new case. This is a modern Toyota in Sturgio’s. What do you think, Jim?

Jim Babalis: Listen, I think in this one, I mean, the employee was also raising some serious issues around lack of direction. So clearly when you sort of look into it, the employment relation was almost severing from the start. Lack of direction, lack of clarity. The work of a claim was there. You’ve got all the mix into this. New South Wales obviously, where the employment obligation period is a bit less. 26 weeks.

Andrew Douglas: Yeah, so it’s six months. But then there’s that nasty second part, which is they can be reemployed in any time in the two years afterwards.

Jim Babalis: And the termination component basically indicated that you know, it’s a case where the employer decided, you know, they’re going to review the operational component failure, to, you know, future direction and planning. So they tried that business angle, that engineered component, I think.

Andrew Douglas: But the interesting part is at the end of it, there was a couple of misunderstandings. Certificates of capacity were sent but not received. A whole lot of stuff, but at the end of the day, the employer had no clear evidence as to what was the inherent requirements of the job.

Jim Babalis: Yeah.

Andrew Douglas: One. Two, an evidence that the person couldn’t do it. So they didn’t have the clear evidence to even start the process. And let’s go back to Bogs and Button about what is the inherent requirement job is the substantive role the person is doing. This is a common law discussion.

Jim Babalis: Yeah.

Andrew Douglas: Yeah. The PD or role description is not a bad starting point, but commonly it’s not real. So you’re looking at what does the person do? So you and I are going to meet a client. I might go out and get coffee. Is that a substantive part of my role? No, it’s not. But I’ll do it. But giving advice and attending the client meeting is, and we get caught up with the noise around what is a role. What the courts look for is what is the job the person’s meant to do? And what is required of that person psychologically, physically and environmentally to execute it? This organization didn’t know. Secondly, it had no evidence, even if that was there, of what the person’s incapacity was in a pure sense.

Jim Babalis: Due to the work hour issue that came up. Yeah and that was another component to this that was really interesting because when you look at, you know, being unfit for work as an employer that did the cardinal sin, which is what we always advise against, if in doubt, go straight to an IME if you need to do it. Don’t hesitate. You know, the spend is okay if you think of it. They didn’t do it in this instance. So it’s sort of like the validity of why. Listen, they looked at the bigger picture. It wasn’t working but under that picture, the granular details needed to have been done.

Andrew Douglas: And there’s a darker place which is missed in this case, which is they sought to rely upon workers’ compensation documentation, which you’re not allowed to do in any jurisdiction where there is an express provision in every legislation saying when you’re looking towards termination, discipline and performance management around health, you can’t use workers’ comp documents. Not agitated, God knows why. But my point about this is whenever you move from a capacity issue workers’ compensation to an incapacity issue termination, you must put aside all the documentation in workers’ compensation. Because that’s all designed for rehabilitation. And as you say, immediately go, okay, what is the job? Secondly, after I’ve defined it, and it may mean that I come to you and you’re the person I say, “Jim, I’m going to video you on my phone.

Can you take me through what your job is?” What better evidence could I have? And Jim’s not going to say, “I do nothing.” He’s actually probably going to overstate what his job is. So it’s a pretty safe place to go to provide that to your IME. Along with task analysis and everything else and then say to the IME, look, see this person and tell me, are they incapacitated to undertake the inherent requirements and these are what they are? Make sure they are under Bogs and Button, not all the crap, but what they’re meant to do. Are there ways we could have this person working doing this job now? What would be the adjustments we need to make? The question of whether they’re reasonable is a legal question. It’s not an IME question. And will they be able to do their job in the future of the reasonable adjustments? This case, like so many others, everyone’s trying to do the right thing, but no one’s doing the right thing. The right thing is identify the job, get the IMA.

Jim Babalis: It needed a process and one that was cautious and you didn’t have that. So I think, listen, when you sort of factor into what previous decisions have said, what we tend to say, I think the commission did get this right.

Andrew Douglas: And look, they got ordered five months compensation. And because they’re in workers’ comp, they end up with 3,000 in their pocket. It’s one of those sort of 200,000 dollar arguments which got us nowhere really, wasn’t it? But the end of the line with this is, this was an easy one to win.

Jim Babalis: It was, yeah.

Andrew Douglas: It was an easy one. And I don’t quite get why we end up where we did.

Jim Babalis: Yeah. And we’ll now turn to our case study. Imelda liked power and shoes. I think I know who we’re talking about, Andrew there. As the head of HR, she felt it was important to look good and lean in. Her words, not mine. However, her pension for high heels had led to several dangerous slips on stairs, resulting in ankle and back injuries.

Andrew Douglas: You realize I just spent a fortune on some boots for Thuy. I just though I’d just throw that in.

Jim Babalis: Yeah, you can throw that one.

Andrew Douglas: She’s wearing them today. Very good.

Jim Babalis: There we go.

Andrew Douglas: Very expensive.

Jim Babalis: Imelda. Not Thuy, Imelda.

Andrew Douglas: Imelda Newman.

Jim Babalis: And not Marcos, not Marcus, everyone.

Andrew Douglas: Come on, Jim. They are not going to pop it.

Jim Babalis: Imelda is now struggling to work as even sitting caused shooting pain down her legs into the back of her feet and along the base of her kitten-heel pumps. Her GP, clearly not a Dr. Marcos, but anyway, her GP advised that she needed to work from home and she relied on that medical advice to make a Flexible Work Request under section 65 of the Fair Work Act. The employer wrote to her doctor seeking clarification and the doctor responded as follows. “I certify her fit to work from home, but wholly unfit to work at her workplace.” She says, “And I accept that she feels unsafe for work because of the workplace design, bullying, flooring and furniture.”

Not our office, of course. Cedric, her manager, was mystified. He spoke to Imelda via Microsoft Teams. She smiled sheepishly beneath her made-up face and said, “I just don’t feel safe at work. It is nothing specific. I just don’t feel safe.” Cedric then asked her about the furniture, knowing that she was using a work chair and computer set up at home and was identical to the equipment provided in the workplace. She simply repeated that she did not feel safe. Afterwards, Cedric wrote to Imelda refusing her flexible work request, directing her to return to the workplace and confirming that he was willing to make whatever reasonable adjustments were necessary to facilitate her return. His reasons were quite straightforward.

He was unable to identify any illness, injury, or conduct directed towards Imelda that prevented her from attending the workplace. Her role as head of HR required regular attendance, interaction with employees and engagement with the workforce. Imelda then submitted a further medical certificate stating for the reasons described in my last certificate, she’s wholly unfit to work, to return to work. Repeated attempts were made to discuss with both Imelda and her GP what it was about the workplace that prevented her from returning on each occasion, each occasion. And the GP simply reiterated the previous advice.

Andrew Douglas: Okay, we’re under questions.

Jim Babalis: Under questions. I really, I mean, I do remember Marcos, you know, retool.

Andrew Douglas: So is that a joke? A foot joke? Can the employer override a medical certificate in this circumstance? So there is abundant case law that says medical certificate’s prima facie evidence, but if challenged by factual evidence can be overridden. On this case, you’re on notice that there is no proper medical evidence. You do know she’s got a back injury. I would just remind you. We do know that she’s got sciatica, so don’t forget that. But what we know is the medical evidence we presented to her is unreliable. And we cannot rely on it, nor can she. Was this a reasonable refusal for a Flexible Work Request? Absolutely.

Jim Babalis: I think it goes without saying.

Andrew Douglas: Yeah no, but there was a good business case for it and there was no evidence suggested. Okay there was no medical evidence saying because of this, she has to work from home for these conditions, not there. Does the employer need to have Imelda independently assess fitness to work? Yes, they do because they’re aware there is a back injury.

Jim Babalis: Yeah yeah. I actually do agree with that one. I mean, it’s something that… There’s always that blurred line, isn’t there?

Andrew Douglas: Yeah.

Jim Babalis: That we sort of see, but I think in this one

Andrew Douglas: Well, I think, you’re in for a fight. You can smell the fight, so why don’t you clear the ground? Identify the job, get the assessment, get her to articulate what they are. Use a more general style forensic medical practitioner to do it. An occupational physician. And you’ll come back with, I can find nothing wrong with the back and you can make these adjustments and she refuses to attend on the base of that, and you’re up and running. Is the employer in breach of work health and safety legislation directing her to return to the workforce? Unfortunately, yes at the moment because there is a known back injury and there’s no evidence to work from.

Jim Babalis: Yeah.

Andrew Douglas: Won’t be prosecuted, but it’s a breach. Okay?

Jim Babalis: Probably just the other component to this. I mean, the actual workspace at home as well would be interesting.

Andrew Douglas: I know. For the same reasons. We don’t actually know what safe is. Yet we’re directing her to do something. Can’t do it. Would the refusal of a Flexible Work Request form the basis of a successful workers’ compensation claim? No, it wouldn’t. Because it’s a proper basis. You see already in the idea of this is to show there is a safety issue which could be the basis of workers’ comp claim, but the refusal of a workplace request is not the basis. So that’s why the question’s there. If the employer terminated Imelda’s employment, would she have a successful unfair dismissal claim, General Protections claim, safety discrimination or disability discrimination claim? And the answer is yes because we failed to do the IME.

Jim Babalis: Yeah that’s the critical component.

Andrew Douglas: We’re over 30 minutes because you and I talk too much. So I sped through that a bit. Okay. Thanks, Jim. Great to play along mate. See you later guys.

Jim Babalis: Thank you.

Andrew Douglas: Bye bye.

Jim Babalis: Bye,