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This article was written by Alex Griffiths.

The Fair Work Commission has shown it will be particularly critical of employers who have chosen not to explore ways an employee might be able to return to work after a long term illness or injury after it recently reinstated an intensive care nurse who was unfairly dismissed while recovering from a serious car accident.  

Implications for employers

Reasonable inquiries need to be made into an ill or injured employee's ability to perform the inherent requirements of their pre-injury role or another role with reasonable adjustments before any decision is made in relation to their suitability for ongoing employment.  

Employers also need to ensure they stay in touch with employees during their recovery from illness or injury in order to avoid claims for unfair dismissal and meet their responsibilities and obligations under the disability discrimination legislation.  

Where employers are considering termination as an option due to an employee's inability to perform the inherent requirements of their role, they should advise employees of what they are considering and provide the employee with an opportunity to respond in accordance with normal principles of procedural fairness. 

Background

In May 2015, Ms Maharaj was involved in a serious car accident on her way to work. She suffered significant physical injuries as well as experiencing stress, anxiety and flashbacks as a result of the accident.  

In April 2016, Ms Maharaj attended two independent medical examinations but was not deemed fit to return to work.  

In August 2016 (some 15 months after her accident), Ms Maharaj's GP agreed she was ready to return to work. Ms Maharaj subsequently contacted her employer, Northern Health, in early September and made it clear that she was ready to return to her pre-injury duties. However, she was advised there was no return to work plan available for her.

Ms Maharaj had a further discussion with Northern Health in mid-September 2016 and again informed them that she could return to work to undertake her full pre-injury duties.  Northern Health advised her that there was no return to work plan available for Ms Maharaj due to a new return to work policy which had been implemented. 

Contrary to Ms Maharaj's evidence of her capacity to work, Ms Maharaj's GP signed a certificate of capacity which indicated that Ms Maharaj had no capacity for work for the period 12 September 2016 to 10 October 2016.    

On 6 and 13 September 2016, Northern Health met to discuss Ms Maharaj's injuries and made the decision to terminate her employment with immediate effect.  
Ms Maharaj subsequently received a letter from Northern Health in which she was advised of its decision.  The basis for her termination was said to be a reliance on Ms Maharaj's GP's certificate of capacity which indicated Ms Maharaj was unfit to perform the inherent requirements of her role between 12 September 2016 and 10 October 2016. 

Ms Maharaj brought proceedings in the Fair Work Commission claiming her dismissal was unfair and seeking reinstatement. She also claimed that Northern Health had acted in breach of sections, 5, 6, 12 and 15 of the Federal Disability Discrimination Act 1992 (DDA).  

Decision

Northern Health submitted it had a valid reason for dismissal, namely, Ms Maharaj had been absent for a significant period of time (some 16 months), she was unfit to return to her pre-injury role and would remain so for the foreseeable future as evidenced by her GP's certificate of capacity. 

At the hearing, it became apparent that although Ms Maharaj's GP did certify her as having no capacity for work between September and October 2016, she did so only because Northern Health had not identified any roles or hours of work suitable for Ms Maharaj to be able to return to work because it had not implemented a return to work plan. 

Consequently, Commissioner Bissett rejected Northern Health's argument and found Ms Maharaj's dismissal was unreasonable.  

The Commissioner found there was no evidence before it that Ms Maharaj could not have returned  to her pre-injury duties on a graduated return to work plan. The Commissioner was particularly critical of Northern Health's approach to Ms Maharaj's injury, expressing dismay that an organisation of Northern Health's size made no inquiries as to Ms Maharaj's ability to return to work and did not think to engage with Ms Maharaj about what it was considering prior to sending her a letter terminating her employment. 

It considered Northern Health's approach was especially surprising in circumstances where it had been contacted to discuss a return to work plan for Ms Maharaj and Ms Maharaj had herself expressed a willingness to return to work.  

The Commissioner found that Northern Health had chosen not to explore "in any substantive way if Ms Maharaj could return to work, when that might occur and on what conditions." It was on this basis that it was found Northern Health had no valid reason for the dismissal of Ms Maharaj. 

The Commissioner also went on to say that by its actions, Northern Health had breached the DDA because it made no inquiries as to whether Ms Maharaj could perform the inherent requirements of her pre-injury position or another position with reasonable adjustments. By failing to engage in any discussion with respect to a return to work, Commissioner Bissett said that Northern Health had "seemingly abrogated its responsibilities".

The Commissioner was satisfied that reinstatement was an appropriate remedy and ordered Ms Maharaj be reinstated to the position in which she was employed immediately before her dismissal.


Dorris Maharaj v Northern Health [2017] FWC 2997

 
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