BlandsLaw - Blog posts from medical assessment
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FWC endorses inherent requirements dismissal

The Fair Work Commission has found the dismissal of an injured storeperson to be fair and reasonable after the employer concluded the employee was unable to perform the inherent requirements of the role.

The employee had been absent from work for a period of approximately 15 months due to non-work-related injuries sustained in a car accident. During this time the employer kept her position open and participated in a number of return-to-work and capacity assessments. The employer considered modifying the employee’s duties however Commissioner Cirkovic found that “…no adjustment could be made…to accommodate her mental incapacity”.

The medical evidence indicated that, while the employee’s physical capacity was improving, her mental state had declined, and she was declared unfit to return to work. In response, the employer wrote to the employee putting her on notice that it was considering terminating her employment as she was unable to perform the inherent requirements of her role.  The employee was invited to attend a meeting and to provide any further medical information regarding her

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When can an employer require a medical examination

Clearly employees are entitled to be absent on approved leave and to return to their role when the period of leave has expired. However, when the absence becomes long-term, often due to an accident or illness, employers can find themselves in the difficult situation of being unable or unwilling to keep the position open indefinitely, but unsure of their options around managing the employee.

The Fair Work Act 2009, along with the Fair Work Regulations 2009, clearly sets out that an employer is prohibited from terminating an employee for reason of a “temporary” absence due to illness or injury, defined as a continuous period of 3 months or a total of 3 months in a 12-month period.[1] This period is longer if the employee is on workers compensation and in those cases will vary depending on the applicable state legislation.

However, the expiry of the “temporary” period does not give the employer an automatic right to terminate the employee. The employer is required to have a valid

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It is important that employers understand when it is and is not okay to require employees to undertake a medical examination. This article looks at some recent cases and considers scenarios that would both allow for such a request and where it is not likely to be upheld as a lawful and reasonable management direction. 

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