Employers don’t have the right to rely on their preferred medical evidence when deciding whether to dismiss an ill or injured worker.

In CSL Ltd T/A CSL Behring v Papaioannou (2018), a plasma receipt operator was dismissed after he took 10 months off work because of a gastrointestinal condition and anxiety disorder.

Following his absence, the employer sought information about the worker’s capacity to perform the inherent requirements of his role, at the time and into the foreseeable future.

The employer obtained two medical reports that provided conflicting assessments of the worker’s capacity. The first medical report was obtained from the worker’s treating practitioner, who estimated a 6-month period for recovery.

The second medical report was obtained from an occupational physician engaged by the employer, who gave a more conservative prognosis of recovery within 12 to 24 months.

Relying on the medical evidence provided in the second medical report, the employer dismissed the worker on the basis that he had no capacity to continue to perform the inherent requirements of his pre-illness duties at that time, or any time in the foreseeable future.

The worker applied for an unfair dismissal remedy and was successful. The employer then appealed against the claim. This was quashed by the Full Bench of the Fair Work Commission (FWC).

The FWC held that there is no basis to leave the resolution of any conflict in medical opinion to the employer.

Rather, the FWC should be called upon to resolve such evidentiary conflict, including the assessment of expert evidence.

Allowing the employer to make the final decision in such a matter is “plainly wrong” the FWC said.

The FWC criticised recent decisions that held that the employer ought to resolve any conflict in medical opinions and opted to follow the approach of previous decisions that held that the responsibility in resolving such conflict should be in the hands of the FWC.

Notably, the FWC has since declared that it will not be required to consider medical reports obtained after the date of a dismissal.

This case highlights a duty on employers with conflicting medical evidence relating to the capacity of an employee to call upon the FWC to have the conflict resolved prior to making its own assessment of the employee’s capacity to perform the inherent requirements of the job.