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IR Update: Employer set high expectations for returning injured worker

February 22, 2016

Employers are reminded to take caution when sending their employees for a medical assessment, as a recent case has brought to light the consequences of dismissing an employee on these grounds.

In the case of Norman v Lion Dairy and Drinks Limited, an employee who suffered from a serious skydiving accident was asked to seek medical clearance on their return to work.

According to the evidence, the maintenance technician fractured both femurs and suffered multiple facial fractures in February 2014. After taking just over a year off work, the employee sought to return to his job, but was dismissed a month later based on evidence that the employee was unable to safely perform his pre-injury duties.

The report, which was produced by a company appointed doctor, held that the employee was “unfit to perform all the inherent requirements of the job”. As such, it was hard to determine whether he would be capable of performing these duties in the near future.

The technician argued that he was denied procedural fairness, as the employer failed to consider the medical evidence of his own orthopaedic surgeon. According to his doctor, the employee was no longer a danger to himself or his environment, and there was no further risk of him aggravating the healing process.

The surgeon also gave evidence that the degenerative changes in the employee’s knees were commonly found in labourers of his age. In his view, the employee was still recovering from a serious injury and thus a level of discomfort was to be expected in the performance of his job.

The Fair Work Commission ruled in favour of the sacked employee and held that the employer did not have a valid reason for terminating their contract. Based on the evidence presented at trial, the company doctor focused only on the worker’s physiological changes and failed to consider the state of his injuries.

It was also relevant that the worker had obtained casual employment with two other businesses, of which both had commended the employee for fulfilling his duties without any issues. Deputy President Karen Bartel was therefore satisfied that the worker could perform the requirements of his role and ordered for the employee to be reinstated.

The full text of this decision can be found here.

In light of this case, employers are urged to consider the benefits of an independent medical assessment. Where employees seek to return to their job, employers must ensure that they consult with the worker and consider any conflicting evidence that is presented before them. If in doubt, please call the NRA Hotline on 1800 RETAIL (738 245).

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