The Public Service Appeal Board (Board) has upheld an appeal, finding that the employee did not commit a breach of discipline or engage in misconduct by not attending one medical appointment, or not signing a consent form for a medical appointment.

Background

The employee worked as an Aboriginal Education Officer/Eco Education Officer - Aboriginal Cultural Program.

The employee was dismissed from his employment on 6 January 2020 for two misconduct findings:

• The employee was directed to attend a medical appointment with a Neurologist, as a fitness for work assessment on 4 July 2019 and failed to attend that appointment.
• The employee was to attend a medical appointment, as a fitness for work assessment, on 8 August 2019, and while he attended that appointment, he did not participate in the medical assessment because he refused to sign the consent form.

The Board's findings

The Board found that the requirement for the employee to be assessed by the Neurologist was unreasonable. The Board found that the prior medical reports did not identify a need for assessment by a neurologist. From a psychiatric point of view, the medical evidence all pointed to the employee being fit for work "presently". It further found that any direction to attend for assessment by a Neurologist was unnecessarily invasive and would have not meet the requirement for sensitivity and respect for privacy identified in Blackadder v Ramsay Butchering Services Pty Ltd [2002] FCA 603; (2002) 118 FCR 395.

The Board found that the employee had good reasons to dispute the reasonableness of the direction to attend the first appointment and his failure to attend that appointment did not constitute misconduct and cannot be grounds for dismissal.

In relation to the failure to sign a form of consent to medical procedures, the Board again found the failure was not misconduct in circumstances where the employer's requirement for the employee to be assessed by a neurologist was unreasonable. The Board also noted that even if the direction to attend the appointment had been reasonable, there was insufficient evidence as to the need for the consent form for the assessment to proceed, and the reasons for the consent form not being completed, to conclude the employee's conduct was misconduct.

Conclusion

While the Board concluded that the findings of misconduct should be quashed, it did not consider that reinstatement was appropriate in light of the employee's medical history, the medical evidence as to his work restrictions, his receipt of workers' compensation incapacity payments and the uncertainty as to whether he was fit to perform the inherent requirements of his position. The Board was additionally concerned that the employee's answers to questions put to him at hearing indicated he had not engaged fully frankly or candidly in his employer's attempts to manage his return to work. The Board instead varied the period of notice of termination.

The decision can be read here.