Failure to undertake medical examination grounds for dismissal
A university professor who failed to attend a medical examination on several occasions, for which she was dismissed, has had her case rejected by the FWC. In the Commission’s view, the employer acted reasonably at all times in dealing with the employee, and consistent with the requirements of the relevant EBA provisions governing the relationship.
The professor was initially absent from work due to illness from February 2019. After initial contact by her employer, RMIT University, to offer support, arrangements were made to assess her condition to determine whether she would be able to perform the inherent requirements of her position. Ultimately, after she failed to attend several examinations, the university terminated her, consistent with the provisions of the RMIT University Enterprise Agreement 2018 (Agreement).
Clause 31.5 of the Agreement states “The Relevant Delegated Authority may construe repeated failures, or a refusal, by an employee to undergo an IME in accordance with this clause as prima facie evidence that such an IME would have found that the employee is unable to perform their duties and is unlikely to be able to resume them within the period set out..” An IME refers to an independent medical examination.
On the first occasion of a scheduled IME in May 2019, the professor said her medical practitioner refused to complete a Medical Information Form (MIF) supplied by the university. Soon after, she lodged a formal complaint in relation to the form and content of the IME.
On the second occasion, she notified the university that due to her complaint, she would not attend the IME. This was rescheduled to August 2019, but she did not attend. She did attend a third IME in November 2019 but because she provided a self-edited consent form, was not examined.
The university then forwarded several letters to her detailing the need for an IME to be undertaken, and the likelihood of her termination if she refused. She was also given the opportunity to provide her own IME and attend a meeting to discuss her situation but failed to comply with either request.
On 19 March 2020, she was advised in writing that her employment was terminated on the grounds of ill health. She subsequently lodged an application with FWC to challenge her termination.
Commissioner Bisset ruled that on two of the three scheduled IMEs, the professor failed to attend and consequently, the university’s response in terminating her was reasonable. As she stated, “I am satisfied that there was a valid reason for dismissal based on the capacity of Dr Hudson to undertake her duties. The reason for dismissal was based on the conduct of Dr Hudson as weighed against the requirements of the Agreement. In this exercise, Dr Hudson was found wanting despite the numerous and varied attempts to enable her to provide the information sought by RMIT”.
With respect to the behaviours of both parties, Commissioner Bisset commented “RMIT provided extensive opportunities to Dr Hudson. It has been flexible, lenient and willing to accommodate alternatives to an IME by which Dr Hudson could demonstrate her fitness for work…Ultimately, when advised her employment might be terminated, Dr Hudson did not respond to the matter at hand. Dr Hudson’s conduct in this respect is unfathomable”.
The professor’s application was dismissed.
It is important to note that not all EBAs or common law contracts necessarily contain clauses to deal with periods of lengthy absences as was the situation with RMIT. Employers are encouraged to review their arrangements in light of this decision.
CH vs RMIT University  FWC 3221 (19 June 2020)
For queries about medical assessments or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178 or via email to email@example.com.
Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.