Commission clarifies the limits of employer’s duty to assess employee capacity
The Fair Work Commission (Commission) has reaffirmed an important principle for employers managing employees with medical conditions: while employers have obligations to consider reasonable adjustments and manage employees fairly, they are not responsible for guessing an employee’s work capacity or identifying appropriate workplace adjustments without adequate medical information.
In a recent unfair dismissal decision, the Commission upheld the dismissal of an employee by Monash Health after finding that the employer had taken extensive steps to obtain medical information and facilitate the employee’s return to work, but the employee repeatedly failed to cooperate.
Key Facts
The employee commenced employment with Monash Health in January 2025 as an International Medical Graduate Affairs Coordinator on a fixed-term contract. Within weeks of commencing employment, concerns arose regarding the employee’s attendance and performance. The employee regularly arrived late without notice, was absent from the workplace for unexplained periods and consistently failed to meet deadlines.
The employee attributed these issues to ADHD, stating that it affected his time perception, concentration, productivity, and information processing and caused fatigue. In response, Monash Health implemented a management support plan that included:
- Flexible start times;
- Hybrid work-from-home arrangements; and
- Mentoring and additional workplace support.
Despite these measures, the employee’s attendance and performance issues continued. Following a period of leave after a motor vehicle accident, the employee did not return to work and subsequently lodged a bullying complaint, which was investigated and not substantiated.
As discussions regarding a return to work continued, Monash Health repeatedly requested medical information identifying:
- The employee’s current capacity for work; and
- Any reasonable workplace adjustments required to safely perform the inherent requirements of the role.
The employee declined to provide the requested information despite numerous requests.
After approximately 6 months of absence, Monash Health terminated the employee’s employment on the basis that he was unable to perform the inherent requirements of his position.
The employee subsequently commenced an unfair dismissal application.
Key Findings
Deputy President Masson found that Monash Health had a valid reason for dismissal.
A significant issue was the employee’s failure to provide meaningful medical evidence supporting either his claimed ADHD or his asserted inability to work.
During cross-examination, the employee acknowledged that he had never provided medical documentation regarding his ADHD and had never identified any workplace adjustments he sought before his employment ended.
The Commission observed that the employee incorrectly assumed that Monash Health was responsible for determining his work capacity based solely on vague certificates of capacity.
Deputy President Masson rejected that proposition, stating that the employer had repeatedly sought additional medical information because the certificates provided were insufficient to assess the employee’s capacity or any appropriate workplace adjustments.
Importantly, the Commission found that Monash Health had requested further medical information on at least 10 separate occasions, with each request being refused by the employee.
Deputy President Masson noted:
“It is difficult to envisage a situation where an employee could have been less co-operative.”
The Commission concluded that the employee had repeatedly failed to comply with reasonable directions concerning his fitness for work and ongoing absence, providing Monash Health with a valid reason for dismissal.
Key Takeaways
This decision is a timely reminder that while employers have obligations to support employees experiencing illness or disability, those obligations are not one-sided. Employers are entitled to sufficient medical information to understand an employee’s capacity for work and any adjustments that may be required and they are not expected to speculate or fill in the gaps where an employee refuses to cooperate.
When managing employees with medical conditions or prolonged absences, employers should bear the following in mind:
- Seek reasonable medical evidence: Employers are entitled to request sufficient medical information to assess an employee’s capacity for work and identify any reasonable adjustments that may be required. Employees are expected to cooperate with reasonable requests for medical information and participate in the return-to-work process.
- Keep a clear paper trail: Employers should document requests for medical information, communications with employees, medical assessments, proposed adjustments, and the opportunities provided to the employee to engage in the process.
- Give the employee a genuine opportunity to respond: Before making any decision to terminate, employers should provide employees with reasonable opportunities to respond and consider adjustments. An employee’s ongoing failure to provide necessary medical information or comply with reasonable directions may constitute a valid reason for dismissal.
Learn More
If you’d like to learn more about any of the matters raised in this article, please contact NRA Legal on 1800 572 679 for a confidential conversation.
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