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Dismissal Upheld for Failure to Provide Medical Evidence

A recent FWC decision has confirmed that employers can lawfully dismiss employees who fail to follow the lawful and reasonable directions of their employer, including by failing to provide medical evidence and information about their fitness for work over an extended medical absence. This unfair dismissal case is a useful reminder that, while employers have obligations in relation to employees who are on long-term sick leave, employees also have obligations to respond to the lawful and reasonable directions of their employers and must provide timely medical evidence.
Background
The case concerned a full-time employee who commenced their employment with the employer in March 2017. In February 2022 the employee experienced seizures at work and commenced a period of leave which continued until her dismissal in September 2024. It is important to note that the employee was not on workers’ compensation during this time and remained on unpaid leave. While the employee provided medical certificates for some periods of her absence, she had failed to provide any medical evidence for the final 18 months of her employment.
During the employee’s absence, her employer made repeated attempts to obtain information about her fitness for work and whether reasonable adjustments could be made to facilitate her return to work. In total the employer issued six written requests for information between 1 September 2022 and 12 July 2023 and issued four show cause letters. The FWC noted that the employer’s requests were appropriately specific about the information they sought from the employee’s treating practitioner. They included questions about the employee’s capacity to safely perform her contracted duties and whether the employee would be able to return to her pre-illness role in the foreseeable future. Despite these efforts, the employee did not provide medical information about her capacity to return to work at any time during her absence.
The employer issued their last show cause letter to the employee on 22 July 2024, which again gave the employee the opportunity to confirm she was fit for work and asked for the employee’s response by 5 August 2024. The employee did not provide a response within the timeframe specified and her employment was terminated on 10 September 2024.
What the FWC said
The FWC found that the employer had a valid reason for dismissal based on the employee’s prolonged absence and failure to comply with their lawful and reasonable directions to provide medical information.
Notably, the FWC found that the employer had given the employee numerous opportunities to show that there was a possibility that she could return to work, but that the employee did not properly engage with these attempts. The employer’s requests for information were ultimately found to be “lawful, reasonable and respectful” and demonstrated the employer’s “patience” with the employee.
Key takeaways
This case is a helpful reminder for employers managing long-term absences to:
- Be proactive and clear: Employers should make specific, respectful requests for medical information and clearly outline the consequences of non-compliance.
- Document everything: Keep detailed records of all correspondence and attempts to engage with the employee.
- Be patient, but firm: While employers must act reasonably, they are not required to hold a position open indefinitely without evidence of a potential return. An employee must respond to lawful and reasonable directions from their employer. An extended medical absence does not exempt an employee from cooperating with their employer’s requests.
This decision reinforces the importance of communication and cooperation during extended absences. Employers must act reasonably in requesting information from an employee about their fitness for work, and employees are equally obliged to engage with their employer’s communications in a meaningful way. This case provides a clear framework for managing similar situations and highlights the importance of procedural fairness and documentation to ensuring the lawfulness of a termination of employment in the context of an employee’s medical incapacity.