Indepdendent medical examinations

Provided they have a lawful and reasonable reason, an employer has the right to direct a worker to attend an independent medical examination. In some cases, it is even an obligation for them to do so, instead of relying on an assessment of the employee’s personal doctor.

This was the case in a recent Fair Work Commission decision: Mr Pero Grujicic v Lineage Aust Trs Pty Ltd [2024]. The worker in this case had been dismissed for his inability to withstand the conditions of the freezer facility he worked in. He had undergone cancer surgery, and his personal doctor told the employer that he could no longer endure cold conditions for more than 15 minutes.

It may seem reasonable for a worker to be let go if they can’t perform the inherent requirements of their job. However, the Fair Work Commission found that he had been unfairly dismissed. Specifically, because the employee’s personal doctor did not provide “clear evidence of incapacity.” The Commission said that the employer should have sent him to an independent medical examination.

In this article, we look at the events of this case, where the Commission highlighted the reasons why independent medical examinations are important. We also look at another recent case where a worker was fired for repeatedly refusing to attend an independent medical examination.

Fair Work rules dismissed worker should’ve had independent medical examination

Pero Grujicic began working for cold storage and warehousing company Lineage AUS TRS Pty Ltd in 1996 and most recently served as a store worker. He worked at a cold storage site in Brisbane, which has a chiller facility that ranges in temperature from zero to five degrees Celsius. It also has a freezer facility that can drop down to minus 22 degrees.

In July 2021, Mr. Grujicic was diagnosed with stomach cancer. He required surgery and was off work until December 2022. Upon his return, Lineage set up suitable duties plan to ease him into back into work. This plan included temporary restrictions on physical tasks, a reduction in working hours and additional rest breaks.

New GM requested new medical assessment

In August 2023, Lineage appointed a new general manager to oversee the site in south Sydney. He noted discrepancies in Mr Grujicic’s medical documentation and initiated a meeting to discuss his rehabilitation arrangements. He requested that Mr Grujicic consult his doctor to secure an updated medical assessment.

After performing an assessment, the doctor said that Mr. Grujicic was “fit for five days a week” and that he was “very susceptible” to cold environments. He explained that Mr. Grujicic’s surgery made it difficult for him to put on weight. Given his low body fat, the doctor recommended that he not spend more than fifteen minutes in a cold environment. The doctor also said Mr. Grujicic’s needed to have regular breaks so he could eat frequent, smaller meals.

The general manager asked the doctor about Mr Grujicic’s capacity to work full days in both the chiller and freezer environments. The doctor said that it was “difficult” to say exactly how long Mr Grujicic could endure sub-zero temperatures. He said that his intolerance to cold environments would last “indefinitely.”

Worker said employer lacked ‘empathy’ by threatening dismissal

On 16 April 2024, Lineage issued Mr. Grujicic a show cause letter stating its intention to dismiss him. The company cited his inability to perform the inherent duties of his role, based on its interpretation of his doctor’s assessment. Lineage said that it could not accommodate the restrictions recommended by the doctor “for operational reasons.” It also said that it had looked into redeployment options but were unable to identify any suitable vacancies.

Mr. Grujicic, through the Australian Workers Union, responded to the letter by saying he had hoped after his years of service Lineage would have acted with “empathy and understanding.” He accepted that the accommodations recommended by his doctor could be “difficult” to implement. However, he said that they were not “unreasonable” and that he was being treated unfairly.

Dismissed for inability to perform role

On 29 April 2024, Lineage sacked Mr. Grujicic as he did not have the “physical capacity” to satisfy the inherent requirements of his role. It said that it could not facilitate the accommodations recommended by his doctor nor deploy him to another role. The company said that Mr. Grujicic would not be able to satisfy his “pre-injury duties.”

Mr. Grujicic subsequently lodged an unfair dismissal application with the Fair Work Commission. He argued that working in a cold environment was not in fact an inherent requirement of his role. Mr Grujicic claimed that Lineage did not follow the advice of his doctor. This was despite relying on the doctor’s words to dismiss him. He also highlighted the fact that prior to being stood down he had been successfully performing his role.

Fair Work examined requirements of role

At Mr. Grujicic’s unfair dismissal hearing, the Fair Work Commission examined Lineage’s enterprise agreement. It found that it did not explicitly list working in cold environments as a duty. It noted that redeployment to a non-cold environment would negate the requirement to endure cold conditions.

However, the Commission acknowledged that it was an “inescapable conclusion” that a tolerance to cold conditions was required when working in a cold storage facility.

Company made assumptions, evidence of incapacity unclear

The Fair Work Commission examined how Lineage acted upon the information provided by Mr. Grujicic’s doctor. It found that the company “substituted” in their own opinion where the medical assessment was unclear. Lineage had made assumptions and “extrapolated” beyond the information provided by the doctor. It was also pointed out that Lineage did not attempt to seek clarification from the doctor.

Importantly, the Commission said that the doctor’s letters were not “clear evidence of incapacity.” They therefore did not offer a valid reason for dismissal based on incapacity.

Trial, independent medical examination should have occurred

A critical factor in the Fair Work Commission’s decision was Lineage’s failure to implement the trial period recommended by the doctor. It said that not conducting the trial was “unreasonable.” The Commission said that the trial would have allowed Lineage to see if Mr. Grujicic could increase his resistance to cold. If he could not, the company should have then referred him for an independent medical examination.

The Commission emphasized the importance of independent medical examinations. It said that when examining a worker’s capability after a bout of illness, the employer “should” send the employee to an independent medical examination. The FWC also noted that this would have given Mr. Grujicic a chance to respond to the belief that he did not have capacity to stand the cold. It would also have given him a chance to discuss his condition with the specialist.

Worker found to be unfairly dismissed

The Fair Work Commission also spoke about the problems with relying only on a doctor chosen by an employee. It said that this situation is not always “appropriate” as it requires the worker to book an appointment, which can take a long time. Also, often the worker does not know what information the doctor has been given. The doctor may also provide advice about treatment, rather than about capacity, which are “distinguishable concepts.”

The Fair Work Commission ultimately found that Mr Grujicic had been unfairly dismissed based on his incapacity. A further hearing was ordered to determine the appropriate remedy.

Uni lecturer dismissed for refusing independent medical examinations

Another unfair dismissal case where independent medical examinations played a central part is Dr Amir Reza Zokaei Fard v Royal Melbourne Institute of Technology (RMIT University) [2022]. Dr Amir Fard began working as an educator for RMIT University in Melbourne in July 2001. In 2020, significant concerns arose regarding his assessment of students. For the first semester of that year, Dr Fard had assessed 57 students as “not yet competent” across five subjects.

RMIT University saw these assessments as a “significant anomaly” and a “remarkable and unprecedented” event. This was because the subjects typically had a 60-80% pass rate. The university revised Dr Fard’s assessment and passed the 57 students as “competent.”

‘Absurdly inefficient’ marking method uncovered

Following the conclusion of the Semester 1 teaching period on 19 June 2020, Dr Fard took 20 weeks of paid personal leave. He provided RMIT University with medical certificates that said he was unfit for work. During this leave period, the university contacted Dr Fard and learned that he was experiencing “mental health issues.” He said that these issues were mostly caused by workplace issues related to the first semester.

When Dr Fard returned to work on 8 February 2021, he raised concerns about his workload. He also requested information about the students whose grades had been modified. Dr Fard’s complaint led to RMIT University reallocating several subjects to other teachers.

An investigation also revealed that he had been using a marking methodology described as “absurdly inefficient and wasteful.” It involved the manual printing of student assignments, annotating them by hand, then scanning them to submit the assignments into the online system one page at a time. This was deemed a “performance issue” by RMIT University.

‘When I go to class I am going to war’: Lecturer takes stand against student complaints

Over the next few months, a number of student complaints made against Dr Fard came to light. RMIT University considered these complaints “troubling” and “abnormal.” One of these complaints had left a student “in tears.” The university told Dr Fard that he needed to give clearer instructions and more accurate feedback to students. He was also directed not to use his manual marking methodology anymore.

In April 2021, Dr Fard was called into a formal meeting to discuss the “very serious” complaints made by students. During this meeting, he was presented with a chronology of the 12 anonymized student complaints. RMIT University told the Fair Work Commission that Dr Fard refused to accept any responsibility for the complaints. He said words to the effect that students at the university were “all against him.”

RMIT University told the Fair Work Commission that Dr Fard appeared “very stressed” during the meeting. It said that at one point he said that “when I go to class I am going to war.” He also said that the students “are waiting to kill me.” RMIT University said that this was an “extreme” and “troubling” statement to make about students. The manager who spoke to the Commission said he had “never heard anything like it” in his teaching career.

Directed to attend independent medical examinations

Following this meeting, Dr Fard commenced a second period of paid personal leave on 3 May 2021. He submitted further medical certificates, which were described as being of a “generalized nature” as they lacked specific diagnostic information or prognoses. A few days later, Dr Fard’s daughter contacted RMIT University. She said that his doctor advised him not to have any contact with the university.

Given the concerning nature of Dr Fard’s extended absences, RMIT University directed him to attend three independent medical examinations. Directions to attend them were issued in July, September and October of 2021. The university argued to the Fair Work Commission that these were necessary due to his extended leave and the lack of detailed medical information he provided.

Dismissed for not attending independent medical examinations

However, Dr Fard did not attend any of these appointments. He told RMIT University that he did “not see any reason” to attend an independent medical examination. He instead offered to provide information from his own doctor.

The university told Dr Fard that his failure to comply with these directions could result in disciplinary action, including dismissal. Despite these warnings, he sent a letter to the university refusing to attend the examinations. He said that the letter would be “the last communication I have with you.”

On 16 December 2021, Dr Fard was dismissed by RMIT University for failing to comply with lawful and reasonable directions. He subsequently lodged an unfair dismissal claim with the Fair Work Commission.

Fair Work said requests were lawful and reasonable

At Dr Fard’s unfair dismissal hearing, the Fair Work Commission examined if the directions to attend the independent medical examinations was lawful and reasonable. It said that the directions issued in July, September and October 21 “involved no illegality” and that they fell within the scope of Dr Fard’s employment contract.

The Commission found that there was no evidence to prove that he was not given enough notice to attend them. It pointed to RMIT University’s repeated communications to Dr Fard telling him to attend the examinations. In finding that the directions were warranted, it highlighted Dr Fard’s extended periods of leave and the lack of specific medical information he provided. It also noted the concerning comments he made.

It also noted that the university had repeatedly told Dr Fard that the directions to attend an independent medical examination was lawful. The Commission emphasized RMIT University’s legal work health and safety obligation to request employees to attend medical examinations to confirm their fitness.

Unfair dismissal claim rejected

The Fair Work Commission therefore concluded that there was a valid reason for Dr Fard’s sacking. This was due to his repeated refusal to attend lawful and reasonable independent medical examinations. Also, due to his concerning conduct and extended medical leave. The Commission ultimately ruled that Dr Fard’s sacking was not unfair, and his claim was dismissed.

Conclusion to: Workplace medical examinations

Our team of highly experienced workplace mediators can help you take action through the Fair Work Commission. Call us as soon as you can, because you need to lodge your unfair dismissal claim within 21 days of being sacked. We offer a no win, no fee service – and your first consultation with us is free and private. Call us now on 1800 333 666.

We are not lawyers however we are the leading workplace advisors, commentators and influencers in Australia. Anything to do with unlawful behavior or discriminatory acts including adverse action, get advice today.

Articles similar to: Workplace medical examinations.

Can l be dismissed on sick leave

Medical condition causes employee to lose their job

How much is my unfair dismissal claim worth