The Fair Work Commission (“FWC”) has ruled a dismissal fair after the employee’s repeated failure to attend an IME (independent medical examination).

The employee, a senior lecturer at RMIT University (“RMIT”) with over 26 years’ of service was terminated on the grounds that she could no longer fulfill the inherent requirements of the job pursuant to the terms of the Enterprise Agreement (“EA”). The EA provided that RMIT could construe repeated failure to attend an IME as “prima facie evidence that such an IME would have found that the employee (was) unable to perform (her) duties.” The employee admitted she did not attend the three IME appointments but contended that this did not constitute “repeated failures.”

Medical questionnaire

The employee was absent from work due to illness from February 2019. RMIT wrote to her the following month asking whether she required any support. The employee did not respond.

In May 2019 RMIT sent the employee a questionnaire for her medical practitioner to complete.

On 3 June 2019 the employee wrote to RMIT to say she was “appalled” by the requirement and despite RMIT’s claims of wanting to assist and support her on sick leave, she accused RMIT of a “calculated endeavour to pressure (her) into waiving (her) legal entitlements.” The employee stated that the medical questionnaire was “an extraordinarily crass and unprofessional document … (which) seems to regard workers as malingers and shirkers.” The employee then filed a complaint with the Vice Chancellor alleging the medical questionnaire was a breach of her privacy. This complaint was found to be groundless, although it was suggested that the questionnaire could be reworded to make its purpose clearer.

“Three strikes and you are out”

The first IME appointment was scheduled for June 2019 which the employee failed to attend. The following month, RMIT requested that she provide a report from her medical practitioner or submit a temporary incapacity benefit which would replace the IME. RMIT also requested a meeting with the employee which she refused.

A second IME appointment was scheduled for August 2019, which the employee also failed to attend. RMIT then rescheduled the IME for 10 October 2019 although the employee requested that it be postponed to 6 November 2019. On 6 November 2019 the employee attended the clinic but would not sign the consent form.

On 22 November 2019 RMIT wrote to the employee to say they were considering terminating her employment on medical grounds with six months’ notice in accordance with the EA. She was asked to respond by 6 January 2020 with the option of meeting with her manager.

On 6 January 2020 the employee wrote to RMIT to say she was capable of performing her role. RMIT’s response was that she would still need to do an IME before she could return to work and requested a meeting.

On 27 January 2020 the employee said she had “sufficiently recovered” to return to her job with certain conditions including her own office. On 4 February 2020 RMIT invited the employee to provide her own medical assessment. She was invited to attend a meeting on 24 February 2020 which she did not do. On 20 March 2020 RMIT terminated her employment. The employee claimed her dismissal was unfair.

Finding

The FWC found that “(t)hrough her conduct she stymied all attempts by RMIT to ensure that she was fit to return to work following an extended absence due to illness.” The employee’s repeated failure to attend an IME was found to be a proper basis for termination. Her conduct over the 12-month period was designed to frustrate the IME process in circumstances where the employer was entitled to determine her fitness for work.

Takeaways
• Long-term absence due to illness is often a complex matter for employers to resolve.
• Employment contracts should include a provision that the employee consents to an IME if required by the employer.
• Employers should also have a policy which confirms the process to follow if an employee’s fitness for work due to illness or injury is in doubt.
• Employee medical questionnaires must include only questions that are relevant and necessary.

Read the decision here.

People + Culture Strategies