By

Mike Toten

Mike Toten is a freelance writer, editor and media commentator.

A bus driver who suffered from Post-Traumatic Stress Disorder (PTSD) has failed to obtain reinstatement, with a tribunal ruling he had not provided evidence he was fit to return to work. At the time of dismissal, he had been unable to work for about three months.

Facts of the case

The driver suffered from anxiety and PTSD after twice being attacked by bus passengers. Later on, he entered the wrong bus and drove it some distance along an incorrect route before stopping and contacting the depot for instructions, to the annoyance of passengers forced to wait. The incident and the delay when he stopped the bus made him feel stressed and he also felt neck pain. After that, he went on sick leave due to stress and did not return to work.

Eventually, he was dismissed on the ground that he could not perform the inherent requirements of his job. He had submitted several medical certificates stating he was unable to work. The employer arranged an independent medical examination that also concluded he was unable to work because his anxiety disorder prevented him from dealing with the mental challenges involved in driving buses.

The employer had warned him that he would be dismissed unless he could provide a medical clearance to return to work within one week. He responded with another certificate of incapacity for four weeks but claimed that he was receiving treatment and recovering, and would have a medical review by his own doctor in about two months’ time.

The employee claimed that his dismissal was unfair, because:

  • His condition was work-related.
  • The employer did not give him a reasonable opportunity to recover but hastened the dismissal process.
  • The employer relied on conflicting medical evidence. An examination ordered by the employer found he was unfit for work, but a surgeon’s report to the workers compensation insurer said that he was fit to work – resulting in the rejection of a workers compensation claim.

The employer claimed that the employee’s doctor had issued four certificates claiming that the employee was unfit for driving buses. Then when asked to provide firm evidence of fitness to resume work, he sent another certificate of incapacity plus vague assertions that he was recovering.

The Fair Work Commission noted that the various medical reports were issued for different purposes. The surgeon had assessed physical capacity but the independent medical examination assessed mental capacity. The surgeon’s report was commissioned by the insurer, not the employer.

Decision

The employee was not unfairly dismissed. At the time it happened, he had not worked for almost three months and the clinical evidence was that he was not fit to resume work. Even though his condition probably had a causal connection to his employment, the workers compensation claim was a different issue. Merely saying that he was feeling better was not a basis on which to conclude that he would soon be fit for work, given that he had had a lengthy absence from work due to medically certified incapacity. The employer had not acted unfairly by not waiting longer, as the employee had already been off work for three months with no prospect of imminent return.

What this means for employers

Where fitness to resume work is an issue, employers are entitled to insist on specific medical evidence that states that the employee is fit to return. Promises that the employee is “receiving treatment”, “feeling better”, “should be ready soon”, etc are not regarded as sufficient evidence. In this case, the “inherent requirements of the job” included the mental challenges of driving buses as well as the physical operational tasks.

That said, not giving an employee a “reasonable” time to recover could result in a dismissal becoming unfair.

Read the judgment

Kapil Arora v Kinetic (Melbourne) Pty Ltd [2023] FWC 1125 (11 May 2023)

Mike Toten

Freelance Writer

Mike Toten is a freelance writer, editor and media commentator who specialises in research and writing about HR best practices, industrial relations, equal employment opportunity and related areas. Mike has over 30 years' writing experience, including writing and editing Human Resources Management