A Melbourne medical practice has been ordered to pay a worker $4,000, despite the Fair Work Commission finding it did have a valid reason when it dismissed her with concerns over a medical condition and her performance at work.
The commission heard proceedings brought by a nurse who, prior to her dismissal, worked two days a week at Colchester Medical Centre in Melbourne’s eastern suburb of Bayswater North.
The applicant had worked at the centre as a nurse on a permanent part-time basis from 2009 until her dismissal in May 2017. Before commencing the job she was diagnosed with multiple sclerosis, and informed the business about this at the time.
The commission heard the business had taken steps to accommodate the worker’s needs, but about one year before her dismissal concerns were raised about her illness deteriorating.
Meetings about this issue began with the respondent in May 2016, where the prospect of the worker undertaking an independent medical examination were first raised.
Over the following months complaints were raised about whether the employee “retained capacity to undertake a number of core clinical competencies”, the commission heard.
The worker was dismissed on May 8, 2017 over concerns of medical incapacity and poor performance, but the worker’s lawyers told the Fair Work Commission that procedural fairness had been denied.
The nurse said she “remained capable of fulfilling the inherent requirements of the role for which she was employed”, and while she had been open to completing an independent medical examination, this had not been put into action and the employer had not provided independent medical evidence of her ability to complete the job at the time of the dismissal.
In response, the medical centre told the commission it had raised concerns about the nurse’s condition several times over a 12 month period, and the centre staff had formed the view the worker’s condition, including “impaired gait and mobility, [and] hand tremors” ultimately meant she could not perform her role any longer.
In considering the case, Fair Work Commission deputy president Masson decided while the employer had a valid reason for dismissal, they way the process was handled made the firing unfair because of a lack of formal warnings and the inability of the worker to provide a response prior to the dismissal.
Masson said there had been no final warnings about any concerns at the start of May 2017, before the dismissal.
“This was due to the Respondent having made a deliberate decision to manage the Applicant’s employment and ultimately her dismissal on the basis of her medical capacity rather than on a performance management basis,” Masson said.
Colchester Medical Centre was ordered to pay the worker $4,240 plus superannuation as compensation, with the deputy president deciding it was not appropriate for the worker to be reinstated.
SmartCompany contacted the employer for comment but did not receive a response prior to publication.
The worker could not be contacted for comment.
Communication is key
Workplace lawyer Peter Vitale tells SmartCompany if a business is concerned about the long-term health outlook of one of its workers, the best thing to do is approach them directly to discuss the future.
“The sensible thing is always to talk to the worker about it, to get a sense of both their short and longer term prognosis.”
An employer does have some scope to end an employment relationship if the medical condition of a worker prevents them from safely performing a role, but Vitale says business owners must avoid making their own calls about the capabilities of employees.
Employers are able to request a worker visit an independent medical practitioner, but the first point of call should be asking their treating doctor for a report on their health, he says.
“In almost all cases, the employer is not going to be qualified to make that assessment [about the worker’s health]. It’s important to obtain the advice of the medical professional, about the longer-term outlook for the employee.”
However, business owners should keep in mind that even if there are concerns raised by medical practitioners about the health of a worker, the employer still needs to discuss these with the employee before making any decisions about their future.
“So if a practioner’s report does come back and it’s not good, it’s still on the employer to present that to the employee and discuss it,” he says.