Until recently, employers had greater ability to make a final call when weighing competing medical evidence to determine if an employee is fit to perform the inherent requirements of his or her role. In appropriate cases, this empowered employers to consider whether an independent specialist’s opinion would trump an employee’s GP certificate when assessing an employee’s medical capacity to perform the inherent requirements of his or her role and return to work.
However, the recent decision of CSL Ltd T/A CSL Behring v Papaioannou  FWCFB 1005 (CSL) has significantly curtailed this employer prerogative, with the Full Bench of the Fair Work Commission (Commission) confirming that the Commission should not be reluctant to interfere with an employer’s reasonable preference of one expert medical opinion over another. An employer will now need to ensure that any medical evidence relied upon to justify a dismissal based on medical incapacity clearly weighs in favour of that outcome as any conflict in this regard will similarly need to be determined by the Commission on the basis of available evidence.
In CSL, a Full Bench of the Commission found that the proper approach when assessing conflicting medical opinion is that set out in Jetstar Airways Pty Ltd v Neetson Lemkes (2013) 239 IR 1;  FWCFB 9075 (Jetstar), and not Lion Dairy and Drinks Milk Ltd v Norman (2016) 261 IR 60;  FWCFB 4218 (Lion Dairy).
In contrast to the Lion Dairy approach (that the Commission should not interfere with an employer’s reasonable preference of one medical expert’s opinion over another), the Jetstar approach requires the Commission to determine an employee’s medical capacity taking into account all of the medical opinion and any further evidence that was before the employer.
In Jetstar, a unanimous Full Bench was of the view that there is no reason why employers should be left to decide which medical opinion is to be preferred, rather, conflicting evidence about capacity is a matter for the Commission to determine (noting that the Commission is frequently utilised to resolve questions of evidence).
The Full Bench in CSL considered that the Lion Dairy approach is inconsistent with the proper construction of section 387 (a) of the Fair Work Act 2009 (Cth). This section states that when considering whether an unfair dismissal has occurred, the Commission must take into account “whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)”, not whether the employer merely considered the employee not to have capacity at the time of the dismissal. Hence, the Full Bench reasoned that it is necessary for the Commission to make a finding on capacity based on the totality of the evidence at the time of dismissal.
Implications for employers
The Fair Work Commission must determine for itself whether, on the balance of probabilities, there was a valid reason for dismissal.
If an employee is dismissed on the grounds of medical incapacity, the Commission must determine whether the incapacity ground is a valid reason. In this regard, no weight will be given to the employer’s preferred medical opinion.
CSL highlights the importance of employers seeking legal advice before proceeding to dismiss an employee on medical grounds, to ensure their assessment of the employee’s capacity to perform the inherent requirements of the role is defensible on the range of evidence before them. If not, there is a very real risk the employer’s decision will be overturned by the Commission, with possible reinstatement and/or compensation orders. The fact that an employer has an independent medical report which indicates that the employee cannot perform the inherent requirements of the role is not the end of the matter.
When presented with conflicting medical evidence, employers should be wary that evidence from an independent medical examiner will not always be preferred to that of a treating doctor, particularly if the treating doctor is a specialist. In considering the balance of medical opinion, the Commission is likely to take into account the familiarity of the treating doctor with the employee and the treating doctor having made their assessment with the benefit of various consultations with the employee. This can make it difficult for employers, as there is a perception that a treating doctor’s view could be affected by the outcome the employee is seeking, given the pre-existing relationship.
A good compromise position may be to have a specialist independent medical practitioner examine the employee and provide the employee’s treating doctor with an opportunity to comment on the external report before making a decision. Where the balance of medical evidence points to the employee not having capacity to perform the inherent requirements of their role for the foreseeable future and there are no reasonable adjustments that could be made to allow them to perform that role, the employer should quickly proceed to dismissal to mitigate scrutiny associated with the employee’s circumstances changing after the assessment date.
What is appropriate to ensure a defensible position in each case will, however, depend on the particular factual matrix involved and your lawyer will be best placed to advise.
This article was written by Brad Swebeck, Partner, Laura Gavan, Associate and Grace Gunn, Solicitor.
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