What a difference a direction makes

Two recent cases demonstrate that how an employer deals with an employee whose behaviour and performance are issues can make a difference when it comes to defending a dismissal claim.

 
Employers must comply with occupational health and safety laws and as part of that obligation to ensure the safety and wellbeing of employees can lawfully direct that employees submit to independent medical examinations to assess their fitness for work.

Lynette Burns was a support worker with Sacred Heart Inc.  In a meeting with a supervisor in May 2013 Ms Burns, according to the supervisor, was “distressed, vulnerable and exhibited elevated levels of behaviour”.  As a result of this Sacred Heart directed Ms Burns to attend an IME so that her fitness for work could be assessed.  She refused to do so and this fact along with other matters was said to constitute misconduct, which resulted in Ms Burns being dismissed.  She applied for an unfair dismissal remedy. 

Anthony Grant was a solicitor at the Victorian Office of Public Prosecutions.  By early 2012 there were concerns about his performance, which had deteriorated over a period of time.  Mr Grant disclosed to his manager that he was dealing with long term depression.  Mr Grant was asked to provide a medical report to that effect but after advice from his union refused to do so.  The OPP did not direct Mr Grant to attend an IME in order to have his medical condition assessed.  He was dismissed for performance related misconduct.  He applied for a remedy that his dismissal was adverse action because of either his mental disability or temporary absences because of his illness.

Ms Burns’ case was heard in the Fair Work Commission and is reported in Burns v Sacred Heart Inc  [2014] FWC 3188; Mr Grant’s case was heard in the Federal Circuit Court and is reported in Grant v State of Victoria [2014] FCCA17.  Both Ms Burns and Mr Grant were the subject of unflattering comments but while the former failed in her application, the latter succeeded in his.

 What Ms Burns and Mr Grant had in common was an ongoing psychological presentation affecting their work performance, and employers, which were sympathetic to their respective positions but losing patience with them. 

 Deputy President Gostencnik found that the direction to Ms Burns to attend an IME was lawful and reasonable and upheld her dismissal. 

 Justice Burchardt said that it was impossible for the OPP to “disaggregate” Mr Grant’s illness from his misconduct and therefore ordered reinstatement, the payment of lost earnings and the imposition of a pecuniary penalty.

Had the OPP directed Mr Grant to attend an IME and he refused, it may have been able to argue that his failure to do so was itself misconduct that warranted dismissal.  Doing this may have negated Mr Grant’s argument that the real reason for his dismissal was a reason prohibited under the Fair Work Act. (An appeal is pending in Mr Grant’s case).

Whilst employers must allow for individual employees’ circumstances, ultimately, they must ensure workplaces are safe for all employees.

Therefore, an employee whose performance is adversely affecting the workplace, who refuses a direction to attend an IME to assess fitness for work may validly be dismissed from employment.

Greg Doran
Director

Anyone seeking advice about workplace laws should contact Nevett Ford Melbourne Lawyers on 03 9614 7111.