The Employment Relations Authority has recently upheld an employee’s personal grievance claim of unjustified dismissal, after their employment was terminated due to “fitness to work” issues.

The employee provided medical certificates to the employer in 2020 which stated that he could not return to work until the COVID-19 alert level was lowered to level one. He later advised the employer that he was experiencing “excessive stress, anxiety and panic attacks” due to poor communication from the employer.

When the employee requested to return to work the employer required that the employee undergo a medical examination. The employer had concerns for the employee’s ability regarding “mental disorder that may impair an individual’s ability to drive safely”.

The employee was suspended while the employer waited for his consent to the examination. The medical examination was eventually completed, and the outcome was that the employee was fit to work. However, the employer was unsatisfied. The employer later dismissed the employee for failing to properly cooperate with a second medical examination.

The Authority had to determine whether the employee had been unjustifiably suspended while refusing to undergo the medical examinations, and later unjustifiably dismissed. These tests look at whether the employer’s actions were what a reasonable employer could have done in the circumstances.

In this case the employee had signed an employment agreement which stated that the employer may require him to consent to medical examination if there is concern for his ability to keep himself or others safe.

If the employee refused to do so, the clause allowed the employer to suspend him. The clause also provided that if this refusal continued for four weeks, the employer could terminate his employment.

The Authority decided that the employer had justified reasons regarding their safety concerns, given the employee’s anxiety and refusal to cooperate. The suspension was therefore initially justified.

However, after a medical examination was undergone and had reported the employee was fit to work, the suspension became unjustified. The employer had no reason to continue to believe the employee was a risk to himself or those around him, given the medical report.

Given that the employer was unjustified to request a further medical examination and therefore unjustified in suspending and dismissing the employee, the Authority upheld the employee’s claims.

The employer was ordered to pay $7,200 in compensation for hurt and humiliation. This was reduced from $8,000, given the employee’s refusal to cooperate or act in good faith towards the employer.

The Court also ordered the employer to pay the employee 42 weeks lost wages, minus what he had earned during that time working for another employer.

It is important to be aware of your obligations when dismissing an employee. If you are confused about these obligations, it pays to seek advice from a professional with experience in the area.


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Alan Knowsley and Hunter Flanagan-Connors