Understanding Your Obligations: Lessons from a Recent Fair Work Commission Decision

A recent ruling by the Fair Work Commission has highlighted important responsibilities for employees during extended absences from work. The case involved the dismissal of a long-term employee from Coles and provides valuable insights into the importance of maintaining clear communication and cooperation with employees during extended periods of medical leave.

This summary breaks down the case, the Commission’s decision, and what employers can learn from it.

Background of the Case

The case involved a Coles Bakery employee who had over seven years of service and went on leave in February 2022, but did not return to work before her dismissal in September 2024.

Initially, the employee took leave following medical episodes at work. During this time, she made unrelated allegations against her store manager, which were investigated and ultimately found to be unsubstantiated. Early medical documentation provided by the employee indicated that she was fit to work at Coles, albeit not in her original store. However, after the conclusion of the investigation, the medical assessments changed to state that she was unfit to work anywhere within Coles.

Over her two-year absence, the employee provided medical certificates sporadically, with no certificates provided during the final 18 months of her employment.

During this period, Coles sent six written requests for medical updates to understand the employee’s capacity to return to work. Each request clearly outlined the information needed and confirmed that Coles would cover any costs for the medical assessment. When the employee failed to respond to these requests, Coles sent four “show cause” letters, asking the employee to explain why her employment should not be terminated. These letters warned of the potential consequences if she did not respond.

The final show cause letter emphasised the employee’s obligation to cooperate with reasonable requests for medical information, noting that she had failed to comply on seven occasions, and that these requests were lawful and necessary for Coles to assess her fitness for work and to consider any reasonable adjustments. When the employee failed to respond to the show cause letter, Coles made multiple follow-up attempts via telephone calls and text messages to draw the employee’s attention to the outstanding request.

Ultimately, the decision to dismiss the employee was based on her prolonged absence and her repeated failure to comply with these requests.

 The Fair Work Commission’s Decision

 The Fair Work Commission upheld the dismissal, finding it to be procedurally fair and proportionate. In reaching this decision, Deputy President Easton noted that Coles’ focus by 2024 was no longer on the cause of the employee’s illness or absence, but on her fitness to return to work and whether any adjustments could be made to facilitate her return to work. The Commission recognised that Coles was hindered over an extended period by the employee’s lack of meaningful engagement.

The dismissal was found to be valid for the following reasons:

• The employee repeatedly failed to provide medical information when requested.
• The employer clearly communicated the reasons for potential dismissal in the final show cause letter and provided the employee a fair opportunity to respond, which she did not take up.

The Commission concluded that the employee did not meaningfully engage with her employer to help them understand her condition or explore potential pathways for a return to work.

An appeal was later dismissed by the Full Bench, confirming that Coles’ actions were lawful, reasonable, and respectful.

Key Lessons for Employers

 This case provides valuable lessons for employers managing employees who are on extended medical leave.

We recommend the following:

1. Maintain Open Communication: It is essential for employers to maintain regular contact with employees on extended leave. Employers should encourage updates and ensure employees respond to communications such as emails, text messages, letters and phone calls to stay informed of their status.
2. Request Lawful and Reasonable Medical Information: Employers have the right to request relevant medical documentation to assess the employee’s fitness for work and to plan reasonable medical adjustments. These requests must be lawful, reasonable, and aim to ensure workplace health and safety. Timely compliance by the employee with these requests is critical.
3. Facilitate Engagement in Return-to-Work Plans: Employers should collaborate with employees and healthcare providers to identify appropriate duties and workplace duties, supporting a safe and sustainable return to work.
4. Follow-Up: Reasonably persist with follow-ups with the employees on an unanswered show cause letters or requests for information. It is important to document all such actions thoroughly to maintain a clear record of attempts to engage the employee. 
5. Implement and Follow a Fair ‘Show Cause’ Process: If an employee does not comply with reasonable requests, a formal ‘show cause’ may be issued to seek explanations. The process must be conducted fairly and transparently, clearly outlining the potential consequences of non-response, including the possibility of termination of employment. Under the Fair Work Act 2009 (Cth), employees cannot be lawfully dismissed due to absence from work because of illness or injury if their absence is less than three consecutive months, or a total of less than three months over the past 12 months, or they are still receiving paid personal leave. Termination can only be considered once the employee’s statutory protections in relation to personal leave no longer apply.