Fitness for Duty

Overview

Where a manager has concerns about an employee’s fitness for duty, ability to fulfil the duties reasonably required of them, or capacity to perform the inherent requirements of their role, the manager may require the employee to undergo a medical assessment by a medical practitioner.

For the purpose of this policy, ‘manager’ includes principal or any other person who has delegated authority.

An examination by a medical practitioner may be required where:

• an employee has been continuously absent due to illness or injury for 13 weeks or longer with respect to a teaching service employee, or 6 weeks or longer with respect to a public service employee, to assess whether the employee is fit to resume work or should be granted further personal leave — illness or injury (refer to Personal Leave — Teaching Service)
• an employee resumes or intends to resume duty following an absence due to illness or injury, and the manager is of the opinion the employee is not fit to resume duty (refer to Personal Leave — Teaching Service)
• the manager has reason to believe an employee’s state of health may make the person a risk to the health, safety or welfare of other employees, themselves, or other persons at the workplace including students (refer to Personal Leave — Teaching Service)
• the manager considers it prudent to independently confirm a person’s medical fitness for employment (refer to medical requirements for employment)
• an employee is the subject of an inquiry into their physical or mental capacity (refer to mental and physical incapacity section below).

There may be circumstances where the treating practitioner’s assessment of an employee is not sufficient to satisfy the manager in relation to an employee’s fitness or otherwise. Where this is the case, the manager may seek an independent medical assessment. The department’s Medical Advisory Service is available to provide advice to managers where there are concerns about an employee’s fitness for duty.

If the concerns relate to an employee’s conduct or performance, the department's Employee Conduct Branch should be contacted on 03 7022 0005 or employee.conduct@education.vic.gov.au

Medical assessment

Where the manager determines that a medical assessment is required to establish fitness for duty, the manager should contact the Medical Advisory Service who can provide advice regarding the selection of an appropriate medical practitioner, assist in the preparation of a referral letter and provide advice on appropriate action following the medical assessment.

The manager must advise the employee of the name of the nominated medical practitioner, the reason for the referral and advise the employee of the details of the medical appointment.

When referring an employee to a medical practitioner for a medical assessment, the manager must prepare a referral letter for the medical practitioner covering the following:

• reason for the referral
• details of previous absences due to illness or injury (if applicable)
• instances of inappropriate behaviour (if applicable)
• a position description or a description of the employee’s specific duties and responsibilities
• specific questions to which the manager requires an answer
• any other documentation that may assist the medical practitioner with the assessment
• a request that the medical practitioner provides advice as to whether the information provided in the fitness for duty report could be provided to the employee without posing a serious threat to the employee’s life or health
• a statement that 'the information in this referral letter is provided in confidence and is not to be made available to the person the information is about'.

When managing fitness for duty medical assessments, it is important that the manager take account of the employee’s right to access health information (refer to Access to Health Information — Employees).

Following the medical assessment, the medical practitioner will provide the manager with a report indicating whether the employee is fit or unfit for their designated duties. The manager will advise the employee of the outcome of the medical assessment and initiate appropriate action consistent with any recommendations made in the report, taking into consideration the needs of the workplace, the rights of the employee and the legal obligations of the employer. Such action may include, but is not limited to, the approval of personal leave, return to work or modification of duties on a temporary or permanent basis. Subject to advice from the medical practitioner, the employee may be provided with a copy of the report. The Medical Advisory Service can provide advice on appropriate action.

Mental or physical incapacity

If an employee is incapable of performing the duties of their position on account of physical or mental incapacity, the Secretary (or delegate) may commence an inquiry.

For comprehensive information concerning the mental and physical incapacity procedures for teaching service employees, refer to the Guidelines for Mental or Physical Incapacity — Teaching Service on the Policy and Guidelines tab.

Related policies

• Access to Health Information — Employees
• Cessation of Employment — Teaching Service — including pay in lieu of entitlements
• Employee Conduct Branch
• Medical Advisory Service
• Personal Leave — Teaching Service
• Superannuation
• Workers' Compensation

Relevant legislation

• Delegations
• Industrial Agreements
• Industrial Awards
• Legislation — Employment Topics
• Ministerial Orders — Employment

Guidelines for Mental or Physical Incapacity — Teaching Service

These Guidelines (last updated 1 January 2015) contain the following chapters:

• Introduction
• What is mental or physical incapacity?
• Mental or physical incapacity procedures
• Rights of review and appeal

Introduction

The Department of Education and Training (the Department) has an obligation to support the maintenance of proper standards of performance and conduct for staff of the Department, and to protect and provide for the welfare and safety of students and other employees.

These Guidelines set out the Department’s procedure on managing mental or physical incapacity for employees in the teaching service. The Guidelines explain what mental or physical incapacity is, the legal basis to commence an inquiry, and the process required to complete an inquiry.

In these Guidelines, a reference to the Department includes a reference to a school council established under Part 2.3 of the Education and Training Reform Act 2006 (the Act), and a reference to an employee includes a reference to a person employed under Part 2.3 or Part 2.4 of the Act or section 20 of the Public Administration Act 2004.

What is mental or physical incapacity?

If an employee in the teaching service is incapable of performing the duties of his or her position on account of physical or mental incapacity, the Secretary may commence an inquiry under Division 8, Part 2.4.56 of the Act.

The mental or physical incapacity procedures do not apply in circumstances where an employee retires or resigns from his or her employment on the ground of physical or mental incapacity.

Advice must be obtained from the Employee Conduct Branch prior to the commencement of an inquiry into the physical or mental capacity of an employee in the teaching service.

An inquiry under the incapacity provisions of the Act is only to be used for teaching service employees with a mental or physical condition that causes them to be incapable of performing the inherent requirements of their particular position. Inappropriate termination on the ground of physical or mental incapacity can, in certain circumstances, be unlawful under the Fair Work Act 2009, the Disability Discrimination Act 1992 (Cth) or the Equal Opportunity Act 2010 (Vic). State and Federal anti-discrimination laws must be complied with, in using these procedures.

The Secretary may delegate his or her powers for the purposes of Part 2.4.56 of the Act to a nominated person or, in exceptional circumstances, a Board of Review. Accordingly, in these procedures, a reference to the Secretary may include a reference to the Secretary’s delegate.

Mental or physical incapacity procedures

These procedures are established under Division 8, Part 2.4.56 of the Act.

If it is alleged that an employee of the teaching service (the employee) is incapable of performing the duties of his or her employment on account of physical or mental incapacity, there may be grounds for action under Part 2.4.56 of the Act.

In some cases, the principal (or in matters where the employee concerned is a principal, the Regional Director) will have formed a preliminary view after referring the employee to a medical practitioner approved by the Secretary for an assessment on the employee’s physical or mental incapacity.

Alternatively, long term certification by the treating medical practitioner that an employee is unfit for their duties will lead to a preliminary view that the employee is incapable of performing the duties of his or her employment on account of physical or mental incapacity.

Step 1 Notify the Secretary of grounds for action

To commence the procedures, the principal or Regional Director will, in consultation with the Conduct and Ethics Branch, write to the Secretary to advise that there may be grounds for action under Part 2.4.56 and to recommend the commencement of an inquiry under Part 2.4.56 of the Act. The principal or Regional Director will not provide to the Secretary any details of the particular matter at this stage.

Step 2 Nominate an investigator

The Secretary will then nominate an investigator to investigate and report to the Secretary in connection with an inquiry under Part 2.4.56. The role of the investigator is to prepare a Notice to be given to the employee, seek a response from the employee and send a report to the Secretary for the Secretary’s consideration and action. In most cases, this will be the principal. In matters where the principal is the subject of the inquiry, the investigator will usually be the Regional Director.

In exceptional circumstances, the Secretary may constitute a Board of Review instead of nominating an investigator. In these procedures, a reference to the investigator includes a reference to a Board of Review, where the Secretary has decided to constitute a Board of Review. If a Board of Review is nominated instead of an investigator, it is recommended that it comprises of:

• an independent medical practitioner nominated by the Secretary
• an independent medical practitioner nominated by the employee under investigation, and
• a person nominated by the Secretary who will act as the chairperson or convener of the Board

No member of the Board should have had any previous involvement in the matter.

Step 3 Investigator to prepare a Notice

Once nominated, the investigator will prepare a Notice to be given to the employee, seek a response from the employee and send a report to the Secretary. The Notice to the employee must contain the matters to be considered as part of the inquiry under Part 2.4.56 of the Act, and the documentary evidence on which it is proposed to rely, such as:

• copies of any medical, occupational or worksite reports
• details of the employee’s leave history
• copies of any performance and development assessments
• details and descriptions of the duties of the employee’s position
• details of the support, assistance and services or facilities provided to the employee to assist him or her to perform the duties of their position
• copies of relevant correspondence between the principal and the employee (or for inquiries regarding the fitness of a principal, between the principal and Regional Director)
• any relevant written records of meetings with the employee, and
• any other supporting documentation (including copies of any statements prepared in connection with this inquiry)

The investigator will request the employee to provide a written response to the Notice within a suitable time frame (being not less than 14 calendar days). As part of his or her response, the employee may submit medical or occupational reports from the employee’s treating doctor or other practitioner.

Step 4 Investigator to prepare report

The investigator will consider the employee’s response, should one be provided, and provide a report to the Secretary. The report will include the matters considered by the investigator and the investigator‘s findings in respect of the same:

• any response by the employee to the Notice
• all relevant supporting documentary evidence, and
• a recommendation either that the employee is incapable of performing his or her duties on account of physical or mental incapacity, or the employee is capable of performing his or her duties

Where a report is provided to the Secretary, the investigator must inform the employee in writing that a report has been provided to the Secretary (a copy of which is to be attached to the notification) and advised a written response to the report may be provided directly to the Secretary within 7 days of receiving the report.

Step 5 Secretary to form preliminary view

The Secretary will consider the report provided by the investigator, and any response from the employee, and will assess the material. Based on the material provided, the Secretary will form a preliminary view as to the facts of the matter. If the Secretary forms the preliminary view that action under Part 2.4.56 is justified, the Secretary will write to the employee to advise that, on the basis of the Secretary’s preliminary findings of fact (which will be set out in the letter), it would be open to the Secretary:

• to find that the employee is incapable of performing his or her duties on account of physical or mental incapacity, and
• to find that termination of employment should occur and invite the employee to make a submission in writing to the Secretary within 14 calendar days addressing one or more of these matters. The Secretary should set out clearly his or her preliminary view on the grounds and proposed action

In making a determination under Part 2.4.56 the Secretary is under no obligation to hold an oral hearing. However, the Secretary may hold an oral hearing or take evidence orally or permit cross-examination of all or any witness if the Secretary considers it appropriate to do so.

Step 6 Secretary’s decision

After receiving and considering any response from the employee, the Secretary will, by notice in writing, advise the employee of the determination and if the Secretary takes action, the right to appeal to a Merit Protection Board.

Rights of review and appeal

Merit Protection Boards

The Merit Protection Boards hear reviews of action taken under Part 2.4.56 of the Act.

Anti-discrimination complaints

The employee may make a complaint of discrimination to an external agency such as the Australian Human Rights Commission, the Victorian Equal Opportunity and Human Rights Commission or the Fair Work Commission.

Dismissal and Fair Work Commission

In relation to dismissal, the Fair Work Commission deals with main types of applications:

• unfair dismissal, and
• dismissal where there has been a breach of the general protections provisions of the Fair Work Act 2009

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