When failure to follow a Direction to attend to an Independent Medical Examination can lead to dismissal
One of the most frequently asked questions from employers is whether you can you terminate an employee from work when they are on long-term personal and sick leave. In most instances this issue revolves around instances where the employee refuses to comply with a direction to either provide medical information or attend to an Independent Medical Examination (IME) that would assess their suitability for work.
One of the driving factors in such situations is a complex history that has led to the employee commencing leave as well as a general disengagement from work. These issues were recently considered by the Fair Work Commission (FWC) in Dr Amir Reza Zokaei Fard
v Royal Melbourne Institute of Technology (RMIT University) (U2022/226).
Background
On 3 January 2022, Dr Amir Reza Zokaei Fard (Applicant) made an application for an unfair dismissal remedy. The Applicant was employed by the Royal Melbourne Institute of Technology (RMIT University) (Respondent) as an educator when his employment was terminated on 16 December 2021.
The Applicant received a termination letter dated 16 December 2021 advising him that his employment had been terminated effective immediately as a result of “disciplinary action for serious misconduct.” The termination of the Applicant’s employment followed his failure to comply with directions to attend an Independent Medical Examination on 28 July 2021, 13 September 2021 and 13 October 2021 (the IME directions).
Prior to the period from when the Applicant took extended leave there were issues surrounding his assessment of students in Semester 1, 2020. Significant anomalies were found in his assessment of 57 students that necessitated academic intervention for re-evaluation. The Applicant then took leave.
The Applicant then returned to work in Semester 1, 2021. However, the complaints from students about his teaching methods did not decrease. The Applicant was asked to attend to a meeting on 29 April to discuss the concerns raised. At the conclusion of the meeting, the Applicant commenced leave and submitted unspecified medical certificates and he would not return to work again.
The Respondent then attempted to arrange IMEs and wrote to and contacted the Applicant. Several attempts were made for IMEs arranged for 28 July 2021, 13 September 2021 and 13 October 2021 and on each occasion the Applicant did not make contact and did not attend.
Ultimately, the Applicant’s employment ceased on 16 December 2021 for failure to follow a lawful direction.
The FWC was tasked with considering whether the IME directions were lawful and reasonable?
Commissioner Cirkovic 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 an effort 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. In the letters to the Applicant he 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.
It was on this basis that 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. Hence, there is a valid reason for termination.
Key takeaway points
Employers should note the following:
This case is a big win for employers managing long-term and unspecified absences from difficult 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.
Article prepared by:
Jim Babalis
Special Counsel
T 03 5225 5205
E jbabalis@ha.legal
Jim Rutherford
Principal Lawyer
T 03 5226 8579
E: jrutherford@ha.legal
