Medical evidence in unfair dismissal cases

Medical evidence after dismissal

One of the trickier unfair dismissal legal issues is the admissibility of medical evidence in an unfair dismissal cases brought after the termination of employment of an employee for a capacity based reason such as because he or she is no longer able to perform the inherent requirements of the job. There is often a conflict of evidence between the medical practitioners called to give evidence by the employer and the employee. Here is an extract from a recent Fair Work Commission case which deals with the issue.

“It is apparent from the decision in Serco in its application of Jetstar that expert medical evidence obtained after a dismissal will not be relevant to the question whether there was a valid reason for dismissal relating to an employee’s capacity at the time of the employee’s dismissal if the evidence is not directed to the employee’s capacity at the time of the dismissal. Expert medical evidence obtained after the dismissal which is directed to the capacity of an employee at the time of his or her dismissal may be relevant and its probative value will depend on a range of considerations including the nature of the employee’s condition and the time between the dismissal and the assessment upon which the expert medical evidence or opinion is based.’

Re Nguyen v KDR Victoria Pty. Ltd. T/A Yarra Trams (20-19) FWC 685 dleivered 6 February 2019 per Gostencnik DP