A question frequently asked by employers is whether you can terminate the employment of an employee who is on long-term personal or sick leave.  This question may arise if an employee refuses to comply with a direction to either provide medical information or attend an Independent Medical Examination (IME) to assess their suitability for work. These issues were recently considered by the Fair Work Commission (FWC) in Dr Amir Reza Zakaei Fard v Royal Melbourne Institute of Technology (RMIT University) (U2022/226).

Background

The Applicant was employed by RMIT University (the Respondent) as an educator before his employment was terminated for serious misconduct on 16 December 2021. Termination followed the Applicant’s failure to comply with directions to attend an IME on 28 July 2021, 13 September 2021 and 13 October 2021 (the IME directions).

Proceeding the issuing of the IME Directions, significant anomalies were found in the applicant’s assessment of 57 students in Semester 1, 2020, which required academic intervention for re-evaluation. The Applicant took extended personal leave after that Semester.

The Applicant re-commenced work in Semester 1, 2021. However, a ‘troubling’ and ‘abnormal’ number of students continued to make complaints about the Applicant’s teaching methods. The Applicant was asked to attend to a meeting on 29 April to discuss the concerns raised.  The Applicant commenced a second period of personal leave at the end of this meeting.

The Applicant subsequently submitted a series of vague medical certificates that said he was unfit for work. The Respondent then issued the IME directions with the Applicant failing to attend the IME each time.

The Applicant’s employment was terminated on 16 December 2021 for failure to follow a lawful direction.  He subsequently made an unfair dismissal application.

Finding

The FWC was required to consider whether the IME Directions were lawful and reasonable to ascertain whether the Applicant’s dismissal was unfair.

The FWC found that there was no evidence to suggest that the Applicant was given insufficient notice to attend the IMEs. On the contrary, there was a series of communications between the Applicant and Respondent from the period 1 July 2021 to 11 October 2021, during which the Respondent made repeated requests for the Applicant to attend an IME in attempt to gather appropriate information as to the Applicant’s medical status and ability to return to work.

Further, the representatives from the Respondent corresponded with the Applicant repeatedly stating that the IME directions were lawful and reasonable in accordance with the common law and the terms and conditions of the Applicant’s contract of employment. The Applicant was “strongly encouraged” to seek advice from a lawyer or his union if he was under the “misapprehension” that the Respondent did not have the ability to direct the Applicant to attend an IME.

Consequently, the FWC found that the IME directions were both lawful and reasonable and that the Applicant’s failure to attend was a sound and defensible reason for the termination of his employment.

Key Lessons

Key observations for employers:

• This case is a confirms that employers can lawfully terminate employees who are failing or refusing to follow directions for attending to IMEs or to provide medical information.

• It is also important that employers still follow process and write to employees and ensure that recommendations are made to employees to seek their own advice about management directions as this ensures that the directions are lawful.

Jasmine O'Brien
Principal
M +61 401 926 108 | T +61 3 9611 0149
E: jobrien@sladen.com.au                                                                                                            

Katherine Dennis
Principal Lawyer
M +61 407 013 010 | T +61 3 9611 0151
E: kdennis@sladen.com.au