Employers may be forgiven for thinking they’re entitled to make a call on conflicting medical evidence when it comes to deciding on whether an employee has the capacity to fulfil the inherent requirements of the job.
After all, that was the view of the majority of the Full Bench of the Fair Work Commission in Lion Dairy  FWCFB 4218 when it held:
‘the Commission is not in a position to make an expert medical assessment… If there is some apparent conflict in medical opinions it will usually be incumbent on the employer to resolve that conflict.’
But in the recent case of CSL Limited T/A CSL Behring v Chris Papaioannou  FWCFB 1005, the Full Bench has done an about turn describing the decision in Lion Dairy as ‘plainly wrong’.
Indeed, in this latest inherent requirements case, the Full Bench considered it antithetical to the ‘fair go all round’ object of the unfair dismissal laws to leave it up to employers to resolve any conflict in the medical assessment of an employee’s capacity.
CSL Behring decision
The CSL Behring case involved the dismissal of an employee who had been off work for 38 weeks, all the while receiving generous salary continuance payments under the terms of an enterprise agreement.
The decision to dismiss him was made after the employer formed the view that, based on the independent medical evidence of an occupational physician, the employee did not have the capacity to perform his pre-illness duties now or at any time in the foreseeable future.
The employee’s treating psychiatrist agreed that the employee was currently unfit for work, but disagreed over the timeline for the employee’s return to work, estimating a six month period for recovery.
Conflicting precedents: Lion Diary / Jetstar
Faced with contradictory medical evidence, Commissioner Ryan at first instance applied Lion Dairy, finding that:
‘It is entirely defensible for an employer to rely upon the report of the [occupational physician] in this matter.’
Yet while the Commissioner was satisfied that the employer had a valid reason for the dismissal based on the independent medical evidence, he went on to conclude that the dismissal was harsh in the circumstances because the employee was denied the benefit of salary continuance payments under the enterprise agreement, which were intentionally designed to be generous and cover long periods of absence.
On that basis, the Commissioner ordered the reinstatement of the employee, a decision which the employer sought permission to appeal.
In allowing the appeal, the Full Bench found that Commissioner Ryan had erred in adopting the approach in Lion Dairy because:
‘there is no basis to leave the resolution of any conflict in medical opinion to the employer’.
The correct approach, the Full Bench said, was that laid down in Jetstar Airways Ltd v Neeteson-Lemkes  FWCFB 9075, which held that, when considering an unfair dismissal case relating to an employee’s capacity, the Commission is required to make findings as to whether the employee suffered from the alleged incapacity at the time of dismissal. Relevantly;
‘Such findings must be based on the relevant medical and other evidence before the Commission.’
The way forward
A clear authority has been set by the Full Bench in CSL Behring: where there are competing medical opinions, the Commission may look behind the employer’s assessment and make its own determination. This does not, of course, relieve employers of the job of carefully weighing up the medical evidence in order to decide on which opinion should be preferred.
Wherever possible, employers should:
· engage an independent practitioner to examine the employee
· choose a specialist practitioner over a general practitioner
· provide all practitioners with a detailed and up-to-date list of the inherent requirements of the employee position and
· if relevant, inform the practitioners of any reasonable adjustments that have been made to help the employee fulfil the inherent requirements of the position.