Full Bench ruled Commissioner error in rejecting applicant’s medical evidence

Full Bench ruled Commissioner error in rejecting applicant’s medical evidence

A Full Bench of the Fair Work Commission has ruled that a Commissioner erred in refusing to admit medical evidence from a dismissed employee to protect him from breaching NSW workplace injury laws regarding unauthorised use of information.

The employee had been dismissed by Costco Wholesaler Australia Pty Ltd (Costco) after the company had sought an independent medical evaluation that indicated he was not fit to perform the inherent requirements of his job. During his unfair dismissal hearing, he sought to submit medical evidence from his treating practitioner that his condition was likely to improve over time and that he could potentially perform alternate duties with the company.

Commissioner Yilmaz had excluded the medical evidence that he sought to provide because it was part of a separate workers compensation matter. The Commissioner dismissed the unfair dismissal application, stating, “I am satisfied that Costco had a sound, defensible and well-founded reason to dismiss Mr Gautum’s favour”.

The Full Bench, comprising Deputy Presidents Masson and Milhouse, and Commissioner McKinnon, made reference to s400 of the Fair Work Act 2009, noting that the Commission must not grant permission to appeal from a decision made by the Commission in relation to unfair dismissal unless it is in the public interest to do so.

In this case, the Full Bench was prepared to exercise that discretion.

Their reasoning for granting the right to appeal was summarised in their decision. As they stated,

“In this case, the potential for injustice to flow from the exclusion of relevant medical evidence persuades us that it is in the public interest to grant permission to appeal…The decision to exclude this medical evidence, and then rely on the evidence led by Costco in the absence of same, denied Mr Gautam procedural fairness. This is because it limited the evidence upon which Mr Gautam could rely on in support of his application. This was no trifling matter.”

The relevant state legislation states that “A person must not use information obtained or pursuant to this Act…except as authorised by or in respect of a matter or for a purpose arising under this Act..”

However, the Full Bench ruled that Commissioner Yilmaz’s exclusion decision was incorrect. As they stated,

“The Workplace Injury Act does not require that a medical certificate be obtained by the person it relates to. Nor does it set out a process that must be followed in order to obtain a medical certificate…For this reason, we do not accept that medical certificates given to an employee by their treating doctor meet the description of information `obtained under or pursuant to’ the relevant statutory scheme”’.

The Full Bench has granted leave to appeal regarding the approach that should be taken towards medical evidence tendered in Commission proceedings.

Employers who are in receipt of reports obtained relating to workers compensation or rehabilitation cases need to exercise care as commonly employers cannot utilise such reports in connection with the employment relationship context under the Fair Work Act 2009 outside rehabilitation.  Employers will commonly engage secondary private reports or establish agreed facts through consultation processes.

Employers should immediately seek legal advice if they seek to use any information outside a rehabilitation process or request.

PG v Costco Wholesaler Australia Pty Ltd [2021} FWCFB 1097 (2 March 2021)

For queries about releasing employee information or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW or 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

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.

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