Refusal to participate in investigation costs an employee their job

It is not uncommon for employees to commence lengthy periods of sick leave in an attempt to avoid participating in disciplinary matters at work, but a recent decision of the Fair Work Commission (FWC) indicates that employees are still required to comply with lawful and reasonable directions even whilst on leave, and that failure to do so can still result in dismissal.

In the recent decision of Jason Air v Peet Limited [2024] FWC 2637, Mr Jason Air was dismissed for failing to comply with lawful and reasonable directions of his employer, Peet Limited (Peet), following a formal complaint about Mr Air’s conduct.

Facts

Mr Air was employed as a Development Manager with Peet on 21 October 2019. On 28 July 2023, Mr Air was alleged to have inappropriately touched another employee during a work social club event (the Incident). This resulted in a formal complaint on 1 August 2023 by the other employee. As such, Peet stood Mr Air down with pay pending the outcome of the investigation into the Incident, with specific verbal and written instructions not to contact any other Peet employees who may be the subject of the investigation.

During the suspension period, Mr Air sent two text messages to the Incident’s complainant. He also failed on three occasions to attend meetings to discuss his response to the allegations against him. On the third occasion on 21 August 2023, Mr Air provided a medical certificate indicating he was unfit to attend a meeting until the end of September 2023. Mr Air remained absent from work and refused to participate in the disciplinary process by taking both sick leave and then unpaid leave. In support of this leave, Mr Air provided medical certificates stating he was unfit to participate in an investigation process.

On 12 December 2023, Peet asked Mr Air to attend an Independent Medical Examination (IME) as it could not keep his position open indefinitely. While Mr Air initially indicated that he consented to attend the IME, he later refused, stating ‘Please have some respect and understand I am on leave.’

Peet then issued Mr Air with a show cause letter on the basis that he had failed to comply with numerous directions including to not contact Peet employees after the Incident, to attend disciplinary meetings and to attend the IME. Mr Air’s response did not address most of these failures. Mr Air was given another opportunity to respond but did not do so, reiterating ‘Please respect that I am on leave.’ Accordingly, on 23 January 2024, Mr Air’s employment was terminated.

On 13 February 2024, Mr Air lodged an unfair dismissal application in the FWC.

Decision

In assessing the case, Deputy President Lake noted that the directions issued to Mr Air were lawful and reasonable. His analysis focussed on Peet’s requirement for Mr Air to undergo an IME, which Deputy President Lake found was a lawful and reasonable direction, as Mr Air had failed to attend three meetings beforehand for generic and unspecified ‘medical reasons’. It was reasonable for the employer to enquire about Mr Air’s capacity for work after he had been absent for nearly six months and indeed this is appropriate after a lengthy absence. Accordingly, Deputy President Lake was satisfied there was a valid reason for dismissal.

Ultimately, Deputy President Lake dismissed Mr Air’s unfair dismissal application, determining that the dismissal was not harsh, unjust or unreasonable.

Take Home Messages

When employers are faced with a medical certificate during an investigation process, the investigation invariably slows down or comes to a halt. However, employers are not required to accept medical certificates and keep these employees’ positions open indefinitely. It is entirely reasonable to require employees to provide medical evidence, including independent medical evidence, in support of their absence and to establish that they can safely return to work, particularly where the absence has been for an extended period of time.

Having said that, in such circumstances it is important that employers tread carefully and consider obtaining legal advice to ensure that they offer appropriate procedural fairness and avoid engaging in discriminatory conduct.

Should you have any questions in relation to this article, please contact Lincoln Smith on +61 8 8210 1203 or lsmith@normans.com.au or Annabelle Narayan on +61 8 8210 1292 or anarayan@normans.com.au.