In the case of Samy and Comcare (Compensation) [2020] AATA 3850, an employee took periods of leave from work to treat shoulder and neck pain that resulted from a degenerative disease. The employee returned to work on restricted hours, before being directed to return full-time once certified ‘fit’ by an occupational physician (OP), appointed by his employer.
The employee was given less than one week to consider the OP’s medical report, during which time his treating doctors were on Christmas leave. He was also refused sick leave in relation to his pain as the OP had certified him fit for full-time hours. After returning to full-time hours, he was overloaded with typing jobs, despite the OP stating his ability to type was significantly restricted.
The employee became subject to a performance management process because he fell asleep at his desk, despite the employer knowing he was taking Endone, which caused drowsiness. During this time, the employee had also been struck by closing lift doors which temporarily aggravated his shoulder pain.
The Administrative Appeals Tribunal (AAT) found the employer’s actions were not ‘reasonable management action’ and accepted that the actions of the employer contributed significantly to the employee’s psychological condition. The AAT found both his psychological condition and aggravation to his shoulder pain to be compensable.
Lessons for employers
- Employees are entitled to supply medical information that may assist in determining their fitness for duty and whether any reasonable adjustments can be made. An employee must be provided with a reasonable opportunity to present their own medical evidence, and the employer must genuinely consider such evidence. No decisions or directions which relate to or may impact an employee’s fitness for duty should be made until this has occurred.
- All medical evidence must be taken into account. Employers cannot sift out bits of the evidence which support a desired outcome. In this case, the employer relied wholly on the OP’s statement that the employee was fit for full-time hours, but completely disregarded those parts about the employee still carrying an injury which needed to be treated, and the significant restrictions in his typing ability. There was an obvious attempt to performance manage the employee out by his supervisors, who were frustrated with his subpar effort and performance, but their actions were not reasonable.
Written by Nes Demir
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