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Juggling an employer’s workplace health and safety obligations against industrial relations concerns can be extremely difficult at the best of times. But what happens when an employee has been ill and wants to return to work? Can an employer insist upon the production of a medical certificate or report which clears that person fit to return to duties, before putting them back to work? The Australian Industrial Relations Commission (Commission) was recently asked that question, when an employee claimed he was unfairly dismissed when his employer insisted that he be declared medically fit before allowing him to return to work.
Facts
In the matter of Jorge Da Silva v Officetecs Solutions Pty Ltd, Mr Da Silva had been employed as a Track Machine Operator since early 2004. In November 2006, he became ill and was taken to hospital by ambulance. The next day, Mr Da Silva was informed by his supervisor, Mr Brian McSweeney, that he could not return to work before visiting a doctor and obtaining a full medical assessment and a clearance allowing him to return to work.
Mr Da Silva’s employer arranged for him to travel to Perth in order to undergo a medical assessment. During several conversations with Mr Da Silva, Mr McSweeney emphasised the need for him to co-operate with the specialists so that he could obtain the relevant medical clearances. Mr Da Silva alleged that Mr McSweeney also stated words to the effect that he no longer had a job with the employer, but this was denied.
In January 2007, Mr Da Silva lodged an application for unfair dismissal with the Commission claiming his employment was terminated in a manner that was harsh, unjust and unreasonable. His employer challenged the application, arguing that Mr Da Silva’s employment was not terminated and that actions were put in place to recruit a replacement for Mr Da Silva only after they had received his unfair dismissal application.
Decision
The Commission preferred the evidence of Mr McSweeney and found that Mr Da Silva’s employment was not terminated during any conversation regarding his fitness to return to work.
Therefore, Mr Da Silva’s unfair dismissal application was dismissed on the basis that his employment was not terminated by his employer.
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