The recent decision by the Full Bench of the Fair Work Commission in CLS Limited T/A CLS Behring v Papaioannou  FWCFB 1005 signals a shift in thought regarding how an employee’s fitness for work is to be determined.
In Papaioannou, the employee had already been absent from work for more than eight months due to a medical condition. A report from his treating doctor indicated that he could possibly return to work within six months. After providing the report to the employer, the employer sought an independent medical examination, the conclusion of which was that the employee could return to work within 12 to 24 months but that this was not likely. The employer subsequently terminated the employment on the basis that the medical evidence available to it suggested that the employee would not be able to perform his pre-illness duties in the foreseeable future.
The Fair Work Commission found that it is the role of the Commission to determine if the reason for dismissal is valid instead of determining that the employer believed that there was a valid reason for dismissal. The Commission also found that to determine this question, the onus was now on the Commission to determine the underlying questions regarding the employee’s fitness including the nature and scope of the incapacity, whether the employee can perform the requirements of the role and the prospects and likely timeframes of recovery.
The decision essentially overturned the position that the Fair Work Commission held in Lion Diary & Drinks Milk Ltd v Norman  FWCFB 421 with regards to the methodology for determining fitness for work. Prior to Papaioannou, as demonstrated in the decision of Norman, the employer’s reasonable reliance on medical evidence in the assessment of fitness for work was sufficient to warrant dismissal of the employee. By rational extension, the Fair Work Commission would only intervene in circumstances where the employer’s assessment of the evidence was unreasonable.
However, the approach adopted in Papaioannou means that the question of whether an employee is fit for work is no longer answered subjectively by the employer at the time of dismissal, albeit being subject to the reasonableness of reaching such a conclusion based on the medical evidence that is available to the employer, but will instead be answered on the basis of evidence that is presented in the proceedings with active assessment by the Fair Work Commission.
In practical terms this development signifies is that it will become even more difficult for employers to establish that a decision to terminate employment based on unfitness for work is justified and that the Fair Work Commission will have a greater role in assessing the merits of such a decision. For employees it is a positive development which enshrines their rights to protection from being unfairly dismissed based on their fitness to work where it is deemed to be objectively unreasonable.