By Victoria Bruce, HC Online
This article first appeared on the Human Capital Australia website. For further information, please visit www.hcamag.com
Failing to properly investigate conflicting medical reports when deciding to fire an employee who had broken both his legs after a skydiving accident has seen an employer lose an unfair dismissal case. HR professionals need to tread carefully and do their homework when relying on medical reports to determine whether workers are fit to perform their jobs, warns Tim Greenall, Special Counsel at Madgwicks law firm.
“The HR community will learn quite a bit from this decision,” Greenall told HC Online.
Greenall says employers must follow the correct process when confronted with conflicting medical opinions and HR should take on a consultative role and pursue enquiries.
In the recent case of Norman v Lion Dairy and Drinks Milk Limited, the employee, a maintenance technician, had been off work for around 14 months recovering from serious injuries after falling 10 metres in a skydiving accident in February 2014. His employer contracted Dr Graham to give an independent medical assessment to ascertain whether Norman was able to perform the inherent requirements of his position.
Dr Graham concluded that Norman was unfit to perform all the inherent requirements of the job of a Mechanical Technician, and that it was not possible to say if he would improve to a level where he could undertake normal duties.
However, Norman’s own orthopaedic surgeon Professor Jaarsma, disagreed with several points of Dr Graham’s report, and said that while Norman hadn’t returned to his pre-injury condition as of March 2015, he was fit to return to work.
Professor Jaarsma stressed that a recovery of 95-98% is achievable after such a serious injury and extended absence from work, and noted that Norman had been working on his property for 10 hours per day in positions closely mimicking his work as a mechanical maintenance technician.
When his employer requested to speak directly to Professor Jaarsma, Norman declined permission, instead offering to pass on any written questions from his employer to his doctor.
However, his HR department informed his employer that he had simply refused access to his doctor.
Despite the clear discrepancies between the two medical opinions, his employer acted on Dr Graham’s advice and proceeded to terminate Norman’s employment.
Norman appealed to the Fair Work Commission, maintaining there was no valid reason for his dismissal, given that his own doctor had given him the all-clear to return to work, and claimed that his employer denied him procedural fairness.
The discrepancies between the two medical reports should have signalled a warning for the employer’s HR department to tread carefully and pursue further enquiries, Greenall says.
“If you want to terminate the person and just rely on your own medical advice and not ask further questions, then that’s simply not good enough,” Greenall says.
“In this case the employee was happy to relay any written questions onto his physician, but not prepared to provide unlimited access to my medical details,”
“However, the employer did decide not to pursue the matter any further and that’s their undoing – that’s where process failed.”
Greenall says HR professionals should sit up and take notice to the outcome of this case, particularly when faced with the situation of conflicting medical evidence.
“I think HR will tread more carefully when dealing with a situation of conflict of medical evidence and that they will go the extra yard,” Greenall says.
“It’s putting quite a large onus on HR and I think a lot of well- informed HR managers still could have tripped up on this.”
“They should have used their independent medical examination to put further questions to the employee’s own doctor, and had their doctor talk to the employee’s own doctor,” Greenall says.
“It’s quite a high bar for an employer, as they are basically having to resolve a conflict of medical opinion.”
HR professionals must make sure they have established on a reasonable basis that the employee is unfit to fulfil the inherent requirements of the role, Greenall says.
When examining the conflicting reports in the case, the FWC stated its preference to rely on the medical evidence of Norman’s orthopaedic surgeon Professor Jaarsma, instead of his employer’s appointed physician.
“Interestingly in this case, the commissioner overturned to employer’s own medical evidence and held that the person was fit to fulfil the inherent requirements of the role,” Greenall says.
“So it’s quite a controversial decision in that sense.”
His top tips for HR professionals faced with medical conflicts is to move carefully, pursue an investigation and attempt to resolve the discrepancy.
“If there is a conflict of medical opinion, take steps to have your own medical advice resolve that conflict,” Greenall says.
He says a medical report must be provided to the employee, and the employee be properly consulted about the discrepancy.
“The employer then needs to go back to the independent medical examiner and ask further questions,” Greenall says. “Because they failed to do this, the process failed.”
The commission noted that the employer had failed to follow procedural fairness and ordered the employer reinstate Norman to his former position.