Workers’ Compensation Certificates of Capacity are Really Important

Blog by Kristine Gatt:  I’ve just been reading yet another example of where an employer has requested documented evidence of capacity from an employee and their failure to provide this has resulted in difficulties for that injured worker. Just recently whilst working with another injured worker WCD pointed out to them that beyond 52 weeks in Victoria, their employer was not required to maintain a position for them and there was a need to consider their options of employment and their capacity before it got to this stage; unfortunately the employee is still of the belief that they will be able to continue their workers’ compensation to 130 weeks at this workplace, but this is not the case if the employer does not have a role for them.

It is important to always work towards a long term goal of employment for the benefit of all parties as few of us can afford to be unemployed. Please read the Fair Work Commission decision below as documented in Tracker News Headlines, October 10 2014.

Lack of engagement with return to work assessment meant dismissal was fair, 10 October 2014

The Fair Work Commission has held that an employee who refused to provide requested proof that she was fit to resume unrestricted duties was not unfairly dismissed.

The employee was a corrections officer employed by The GEO Group Australia Pty Ltd (GEO) in Victoria’s Fulham prison. The employee injured her hip and shoulder while at work in September 2011. Following the injury she was unfit for duty as a corrections officer and was placed on administrative duties. In March the employee was informed there was no administrative position available. The employee then provided a certificate stating she was fit to return to her correction officer role with some restrictions relating to her capacity to stand or walk for long periods.

GEO requested further information and warned the employee she may be dismissed if she was unable to return to full duties. The employee then informed GEO she had been cleared to return to work with no restrictions. GEO requested a medical certificate stating her fitness and a report from the doctor explaining why the assessment had been changed from fit for duty with restrictions to fit with no restrictions. GEO also requested permission to speak with the employee’s doctor.

The report did not fulfil the request. The information given did not explain the changed assessment or clarify why the employee was now at a lesser risk of exacerbating her injuries if placed on unrestricted duties.

GEO was not satisfied that the employee was fit for work, further information was not forthcoming from the employee or her doctor. GEO was not given permission to speak directly to her doctor. The employee’s employment was terminated. The employee then made an unfair dismissal claim.

Commissioner Bissett found that the employee was not unfairly dismissed. GEO was justified in trying to ensure that the employee was fit for unrestricted duties and was not at risk of further injury if allowed back to work on that basis.

The employee did not engage with GEO’s attempts to confirm she was fit for duty and by refusing permission to speak to her doctor made it difficult for GEO to understand why, after two years of restricted duty, the employee was suddenly fit for unrestricted duties just two weeks after her doctor had recommended she return with restrictions. This was further compounded by the employee’s union questioning GEO’s right to request the information rather than seeking to explain the employee’s situation.

GEO’s requests were not unreasonable as it was trying to comply with its obligations to ensure that the employee was not a health and safety risk to herself or anyone else.

The application was dismissed.

Columbine v The GEO Group Australia Pty Ltd T/A GEO [2014] FWC 6604

REF: Tracker News Headlines, October 10 2014