Employer succeeds in an unfair dismissal case where tram driver did not tell doctors of his stroke

Introduction

In a recent case in the Fair Work Commission, the Company successfully defended an unfair dismissal case involving the misconduct of an employee by failing to disclose he had suffered a stroke.

Commissioner’s reasoning

In finding there was a valid reason for the employee’s dismissal, the Commissioner’s reasoning included:

• There is a National Standard that applies to the Company and the employee as a tram driver. The employee was given training and on two occasions was given an information sheet on the requirements of the National Standard. Accordingly, the employee should have been aware of the requirement to notify the Company of any temporary or ongoing health condition or change in health status that was likely to affect his ability to perform his work safely, and to provide complete and accurate information concerning his medical history to the assessing authorised health professional.
• The employee knew he was diagnosed as having suffered a stroke within a short time after he was admitted to hospital and knew he was taking medications.
• When the employee was assessed by doctors nominated by his employer to determine his fitness for work, the employee did not disclose the stroke diagnosis or that he was taking medication to both doctors. He also did not tell one doctor information he was told by the other doctor, being that he was unfit to work for three months or that he needed to see a neurologist before returning to driving trams. Such behaviour led to the employee being found as fit to work when he could not be so found and he drove trams in breach of the National Standard which had set a minimum three-month period off duty following a stroke.
• The employee was also dishonest during the Company’s investigation process.   

The Commission stated the employee’s “lack of candour and his false and misleading statements made to the doctors breached his duty of good faith and fidelity to his employer, as did his misconduct in misleading his employer during the investigation.” 

The Company was of the view the employee’s conduct amounted to serious misconduct, but it nonetheless paid the employee in lieu of the required notice period.

Despite factors that weighed in the employee’s favour including that the employee was 63 years of age; the employee had worked for the Company for approximately 21 years; and one doctor had breached their confidentiality obligations to the employee by disclosing information to the employer other than information relevant to his work capacity; the Commission still found the dismissal was not unfair in the circumstances.

Key take-away

This case is an important reminder of the requirement of an employee to maintain the confidence of their employer in the employment relationship and the duty of good faith and fidelity requiring candour in the employment relationship. The Commissioner explained “that duty of candour extends to an employee interacting with a third-party provider to an employer, in this case, doctors engaged by the company, to provide guidance and/or assessments to the employer as to the employee’s fitness to work.” Therefore, this case is an important example of what may amount to a valid reason for dismissal, but of course having a valid reason is only one of several necessary components for an employer to successfully defend an unfair dismissal case.

This case is also a reminder for employers to provide adequate training and appropriately inform employees of their obligations, for example like in this case of the employee’s obligations arising from the applicable National Standard, and for employers to keep adequate records of the training and other steps the employer has taken in that regard. 

Warren Soans v KDR Victoria Pty Ltd T/A Yarra Trams [2022] FWC 2876 (27 October 2022)

If you would like more information about the case, please contact our office on +61 2 9233 3989.

National Workplace Lawyers

Note — this is for information purposes only and does not purport to be comprehensive or to render legal advice.