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Avoiding the long and winding road to employee termination

Employees must be given time to respond to a proposal to end their employment. But they needn’t be given forever.

It is common for employees to ask for more time to respond to allegations or proposed disciplinary action. In fact, such requests are sometimes made multiple times, leading to a long, drawn out – and often costly – process.

In some cases, a request may be for legitimate reasons and due to matters beyond the employee’s control. In others, they are made simply to stall or avoid the process. These requests can be a source of real frustration for employers.

Questions that often arise include: if an extension is requested, must it always be granted? How long (or short) is a reasonable extension? How many times can or should an extension be granted?

These questions arose in Lahner v Health Secretary on behalf of Western Sydney Local Health District [2023] NSWIRComm 1060. Having had 12 weeks to obtain a medical report regarding his ongoing employment, but not having done so, Mr Lahner was seeking to prevent a decision being made on his ongoing employment.

The facts

Mr Lahner had not worked at Western Sydney Local Health District since 25 March 2020. He remained unfit for work with no return in sight. Three years later, on 31 March 2023, Mr Lahner was asked to show cause why his employment should not be ended on medical grounds and was given 14 days to respond.

Mr Lahner sought more time, stating, “It is impossible to obtain medical appointments, legal advice, industrial support, notify statutory authorities and access to political intervention within your timeframe.” In response, the District then gave him until 11 May 2023 to reply.

Mr Lahner wanted more time, claiming the earliest he could get an appointment with his doctor was 4 July. At no time did Mr Lahner say he expected any further report to say he was now fit for employment. In addition, Mr Lahner was seeking work injury damages. 

The legal framework

Under section 88(b) of the Industrial Relations Act 1996, the NSW Industrial Relations Commission may take into account “whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment”.

The District, Mr Lahner’s employer, argued that “an affected worker need not be given infinite opportunities to respond but ‘an opportunity.’ Further, it is trite that it is a matter for the [worker] whether he avails himself of that opportunity in a proper and timely manner.” 

The decision

Commissioner McDonald agreed with the District. Mr Lahner had received ample opportunity to respond and any decision to terminate his employment before 4 July 2023 would not be unfair, she said.

Firstly, Commissioner McDonald found “there is not a skerrick of evidence that there is even a possibility that the Applicant may be fit for any work, let alone work of the kind required to fulfil his role with the Respondent. All the evidence is to the contrary.”

Secondly, in those circumstances, Mr Lahner’s “case is one of form over substance – he seeks to use the principle of procedural fairness to delay his dismissal in circumstances where there is no evidence that he will, in a practical sense, lose any opportunity to submit to the Respondent’s delegate that he is fit for work.”

As such, Commissioner McDonald found “in the absence of any evidence that there is a possibility that the Applicant may be fit to perform his duties, the Applicant will not be denied procedural fairness if he is not allowed (further) time to obtain a medical report from a suitably qualified medical specialist and consequently the threatened dismissal of the Applicant is not unfair”. Despite finding in favour of the District, Commissioner McDonald did offer some words of caution:

Given the age of the medical evidence I would have had no hesitation in finding that the Applicant would indeed be denied procedural fairness if he asserted that he considered himself fit to perform some or all of his duties and he was not provided a reasonable opportunity to present updated medical evidence to establish his fitness, before a final decision was to be taken in respect of his ongoing employment. For the Respondent to proceed in those circumstances would be unjust, particularly when such evidence is likely to be available within a relatively short period of time.

In those circumstances, is it still a question “as to how long should an employee be given to respond?”

In this particular case, however, Mr Lahner had sufficient time to arrange a fitness assessment, and failed to do so. Mr Lahner only did so late in the piece; seven weeks after he first received the show cause letter. “In the circumstances, I consider that the Applicant has had a reasonable opportunity to present and have considered medical evidence to persuade the Respondent’s delegate that he is fit,” the Commission said.

Lessons learnt 

The decision makes clear that there are limits on employees’ time and opportunities to respond; employers are not subject to employees’ whims on this matter.

Employees must respond in a timely manner and employers must grant them reasonable time to obtain the necessary documents, such as medical reports. Tactics that are deployed simply to delay a decision will not be supported. 

Author: James Mattson

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