EMPLOYMENT LAW – CASE REVIEW DAVID BURTON
Medical incapacity – a last resort This case demonstrates the need for a fair process and reasonableness when it comes to terminating employment on the grounds of medical incapacity. David Burton from Cullen Law talks us through the details.
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mployers have a duty to protect the wellness of their employees at work. However, there may come a time when it is reasonable for an employer to terminate employment because of health issues. The recent Employment Relations Authority decision in Zammit-Ross v Chief Executive of Oranga Tamariki is a good example of an employer getting the process and justification for dismissing an unwell employee right. Ms Zammit-Ross was a long-serving employee of Oranga Tamariki (OT). She was employed as a social worker in a youth justice facility that accommodates youth offenders who have been remanded or sentenced into custody. In May 2017, Ms Zammit-Ross intervened between two youths who were fighting in the courtyard. Her hand became twisted in one of the
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HUMAN RESOURCES
WINTER 2021
youths’ tops as she was attempting to restrain him. This resulted in her wrist becoming injured. After the incident, Ms Zammit-Ross continued working at the facility but undertook light duties involving less contact with youths. From October, Ms Zammit-Ross was unable to continue working due to worsening pain in her wrist. A rehabilitation plan was developed in November for the wrist injury to help Ms Zammit-Ross return to normal activities at work and home. However, in December, a further medical certificate was provided to OT advising that, in addition to the sprain, Ms Zammit-Ross was also suffering from post traumatic stress disorder (PTSD), which had been reactivated from the assault. Ms Zammit-Ross had not disclosed a pre-existing disposition to PTSD. There was no evidence that OT had any knowledge that an incident such as breaking up a fight would have had the consequences that it did. Ms Zammit-Ross then developed increasing mental health symptoms. The first medical report prepared in January 2018 was not provided to OT due to the deeply personal information it contained. As a result, the meeting proposed to discuss
Ms Zammit-Ross’s situation was delayed to enable Ms Zammit-Ross to see her doctor again. The doctor’s second report confirmed Ms ZammitRoss was receiving treatment for PTSD and stated that she remained “highly symptomatic and significantly functionally impaired”. The prognosis for a full recovery was probably one to two years, with a very low likelihood of recovery to full fitness to work in her role within 12 months. The report also advised that, if Ms Zammit-Ross were able to return to work within the next 12 months, further traumatic exposure would exacerbate her symptoms and prolong recovery. The parties had discussions and attended mediation in July. In August, OT began the formal process set out in its collective employment agreement (CEA) for medical incapacity. Ms Zammit-Ross’ doctor’s opinion was that she “is medically unfit from today and will remain unfit for the foreseeable future”. OT’s doctor confirmed his earlier opinion and prognosis. Following a meeting with Ms ZammitRoss, a decision was made to proceed to terminate her employment for medical incapacity at the end of October 2018. In November, notice
