topic Fit for duty assessment advice in Anxiety

Fit for duty assessment advice

Mark213 — Fri, 19 Feb 2021 08:29:03 GMT

Back in October I went on stress leave due to work matters I have already addressed. I returned in November on a return to work plan - not workers comp related I wanted to deal with this internally. I was on medication to assist with my low mood and feeling anxious. I had a mmreactioni ld reaction, reported it immediately and got off the medication with confirmation from my Doctor. My work sent me to a corperate medical doctor who stated that I to be supervised with staff and I cannot drive machinery, however he stated I am fit to work and need bipolar excluded by a Pyschiatrist. So, I went to a fitness for duty assessment with a Pyschiatrist and was determined that I have no mental illness, I'm fit to return to full duties and I was suffering from low mood which resolved on its own, no further treatment required. My doctor agreed I can return to work. I have sent my paperwork to my HR and the last meeting I had is they are still investigating for an outcome due to the conflicting reports with the Pyschiatrist and medical consultant.

Has anyone been through something similar? Remember, this is not a workers comp claim. I'm starting to feel depressed because I feel like they want to terminate me.

Fit for duty assessment advice

Mark213 — Fri, 19 Feb 2021 08:34:27 GMT

Mild reaction*

Fit for duty assessment advice

Summer Rose — Fri, 19 Feb 2021 09:43:24 GMT

Hi Mark213

I’m really sorry to hear that you’ve been unwell but so pleased to hear about your recovery.

I am an employer and have experience with these types of issues from the other side of the fence.

I can’t see the hold up. Generally speaking the specialist report will carry more weight than the advice from the medical consultant and the support from your GP is gold.

The delay doesn’t necessarily mean, however, that they want to fire you. They really have no reason to behave that way, as you’ve recovered.

My guess would be that behind the scenes they might want time to get a legal opinion in the file to ensure they have no liability relating to the different reports, particularly as you drive heavy machinery. This would be about covering themselves and not about you.

I would start putting things in writing with your employer. An email to HR that puts in writing what they’ve told you and asks for a timeframe for a decision.

Make sure to include that you’re ready now to return to your role in full accordance with the views of the psychiatrist and your GP and are struggling to understand the reasons for delay. Let’s see how they respond.

If they invite you to another meeting ask if you can bring a support person.

You can also call Fair Work for advice on your next steps.

Kind thoughts to you

Fit for duty assessment advice

Mark213 — Fri, 19 Feb 2021 20:30:41 GMT

Thank you for your insight. My partner has been helping me with this and after every meeting or conversation she would send back in an email for HR to confirm. In the last email it was said if the meeting is the final outcome and their response was:
"Our intent is that we will have an outcome of the review we have conducted and be able to advise on next steps required.

We are yet to determine the exact action, hence the request to meet again in 1 weeks’ time." During the meeting I asked what are the probable outcomes and she mentioned 1 could be termination. Their response sounds that my meeting next week they might still not have an outcome.

Nothing violent happened and i have never been performance managed, bever got warnings and i was always told i was doing a good job. I just felt stressed and made a complaint of how I was being treated, I wish I could post the whole story it's too long...

In their doctor report, they raised questions that I was being aggressive without being provoked and mood swings. This is why they stood me down and put me on SLWOP. I was never spoken to about those things. I got angry at a casual who was on parole and threaten me. I got angry not aggressive and I was feeling unsupported by my Manager, hence I went on stress leave because my mental state at the time.

Fit for duty assessment advice

Mark213 — Fri, 19 Feb 2021 20:47:49 GMT

Sorry I should have mentioned that i have a meeting next week and I asked in a email if this would be the final outcome and that's the response I received with their intent.

Fit for duty assessment advice

Mark213 — Fri, 19 Feb 2021 23:12:34 GMT

Sorry for the million replies. I have a medical certificate from my GP from yesterday stating I have had a check up i am still doing well and have been cleared to work since the 5th Feb. Im going to email them this along with saying that I anticipate that their team will have an outcome in the next meeting. I have been receiving no income for 7 weeks which is starting to be a financial strain due to not being able to receive income from any other source. What do you think? Can I also mention my GP advised that their doctor report is incomplete because their Doctor never actually spoke to my Doctor. Their doctor kept calling mine but my Doctor said that for medicolegal reasons he needs to send his questions in writing. Their doctor never sent any questions then signed off the report stating he was unable to speak to my GP which could have serious implications on my employment.

All of this is starting to make me anxious and worried so excuse all the replies.

Fit for duty assessment advice

Summer Rose — Sat, 20 Feb 2021 01:37:07 GMT

Hi Mark

Don’t worry about the multiple replies. I understand your anxiety.

It sounds like quite a complicated situation. I’m not sure that I are really get what’s happening but happy to share some thoughts and ask some questions.

No pressure to answer here but could help my thinking.

Have you been suspended from work? If so, that should be with full pay.

Are you on sick leave? That should be paid or you could ask to use leave entitlements.

To me, if HR has advised that a possible outcome of the next meeting could be termination of employment then that usually indicates that you are already in a performance management process.

However, there should have been an investigation when you were threatened by the casual. Has that occurred or is that what’s happening now? Did you report the threat to the police?

Kind thoughts to you

Fit for duty assessment advice

Mark213 — Sat, 20 Feb 2021 01:44:47 GMT

I haven't been suspended I was placed on sick leave until I get a diagnosis from a Pyschiatrist and then my fitness for duty will be assessed. Basically In october at the start of all this I put in a complaint about the ongoing rotation of casuals working with me, I had 13 since January last year and said it's a safety issue. This casual kept showing me photos of holding a gun and said if I was in prison with him he would make me his b***h. I confronted him angrily and he quit (No violence just verbal). The manager called the casual and asked if he wanted to make a statement against me and the casual said no (obviously because he was at fault and the casual texted this to me) the manager did not know I knew this and he came up to me and said he would give me the benefit of the doubt. I got upset and when we got a new casual in the workload was turned up which was unsafe. I felt the manager did this to bully me and when I asked he said he wanted to see how far he could push me. This is what lead me to go on stress leave for a week.

Fit for duty assessment advice

Mark213 — Sat, 20 Feb 2021 01:48:15 GMT

I was asked if I wanted work cover, I said no I just want to deal with it internally. We had a meeting came to the conclusion that I will work on better communication and they will better screen the casuals.I had a return to work from my Doctor, I wanted to work less hours because I work 105 hours in a fortnight. I asked to stop working Saturday and they said it's a requirement of my role. They then realised they gave me the wrong contract and HR implied indirectly if I didn't sign I won't meet the requirements. Regardless I signed because I wanted to move forward. I came back to work and the manager and I had a disagreement, however we settled it and we now get along very well. He said I was doing well and complied.

Fit for duty assessment advice

Mark213 — Sat, 20 Feb 2021 01:53:48 GMT

I had a very mild dose from my medication, reported it, cleared I was not on it anymore, they then said I can return the normal duties the next day. 3 days after that my regional said they were sending me to a employment check up. I asked my manager what this was and he said like a drug test. I went and it turned out to be like a fitness for duty assessment which I didn't know until after. I was answering all over the place because I was confused. 2 weeks after my work health and safety said their doctor couldn't get in contact with mine. But the next day I went on annual leave for a week and I wasn't in Sydney. When I came back I was called in to work and said they are putting me on annual leave, sick leave then leave with out pay. I have now exhausted all these. So in their doctor report it says that due to mood swings I shouldn't drive machinery, be supervised with staff and customers but I am fit to work.

Fit for duty assessment advice

Summer Rose — Sat, 20 Feb 2021 07:29:47 GMT

Hi Mark

Please don’t worry about the multiple posts. I understand anxiety and I am here to support you. I must stress, however, I am not a lawyer—just a business owner.

You’re in a complicated situation but please know these kinds of issues in the workplace are surprisingly common. I know you’re worried about your job but your employer would be taking a real risk to dismiss you.

If I was your employer, I would not terminate your employment. This is because I think you would have a very good case for unfair dismissal and/ or adverse action. You can lodge two complaints.

Your employer is vulnerable on a few fronts. You were the victim of workplace violence and there was no proper investigation or support provided to you. You were then bullied by your manager and again no appropriate response. In addition, you were mislead about the real purpose behind the medical appointment.

On top of all this, you have become unwell because of this and suffered significant financial loss. (They will argue, however, it was your choice not to apply for WorkCover. You need to think about why you wanted to keep it internal to explain this.)

Are you sure you want to work for this employer?

If they take a risk and dismiss you, and you want your job, don’t get angry or say too much. I suggest this because one of the remedies at Fair Work, along with compensation, is to make your employer reinstate you.

You have 21 days from the date of termination to make a Fair Work claim or claims. Because it’s really complicated please get a lawyer to help you right from the start.

In the meantime, send an email explaining that you expect an outcome at the next meeting, as the excessive delay is unreasonable and causing unnecessary financial hardship and stress. Take a support person to the meeting, it always helps to have a witness.

Kind thoughts to you

Fit for duty assessment advice

Mark213 — Sat, 20 Feb 2021 09:05:58 GMT

Thank you for this. I feel like because I brought all of this to their attention they are trying to twist it as though it is me. If I didn't say anything at the begining, everything would have traded as normal and I thought it was best for me to make a complaint. When I had the meeting about my complaint it was as though they were trying to make out that I was blowing it out of proportion. However, they admitted to better screening the casuals in future. I didn't go through work cover because I like my job and all I wanted to do was resolve it and move on.

Fit for duty assessment advice

Mark213 — Sat, 20 Feb 2021 09:31:54 GMT

Can I ask that if they do find me fit to work, will they have to back pay me and if they do terminate me would they have to pay me the termination notice.

Also the reason why they have labour hire casuals is to replace a guy I worked with who was fulltime and really injured his back a year ago in the warehouse with me. He has been on work cover since.

Its hard because I feel hopeless and my partner is paying for everything at the moment so i really just want to know the outcome so I can move on.

Fit for duty assessment advice

Summer Rose — Sat, 20 Feb 2021 12:55:15 GMT

Hi Mark

I want you to know that you did nothing wrong raising a concern about safety.

Safety is everyone’s responsibility and nobody knows the risks and issues better than the people who do the job. Your actions may very well have reduced the potential for harm and injury in the workplace.

If they do terminate your employment it’s my understanding they must pay out the notice period. But, if this happens, I would head straight to Fair Work.

It only costs about $80 to lodge a complaint and there are plenty of “no win, no fee” lawyers to choose from. The financial compensation can be significant, up to six months pay and it’s fast. You will have an outcome in 2 to 3 months max.

Most employers will look to settle before it gets to court. I obviously don’t have all the facts or your employer’s side of the story but I would encourage you to try.

But, like I said, I would be surprised if this happens. They now have two reports that deem you fit for work and they’re not squeaky clean in all this so there is risk for them.

They probably feel lucky to have dodged a WC claim. The reason they’ve put you in for all the leave etc, is they can’t have you working if there’s any question about fitness—just in case something happened. If there was a further injury or set back and you changed your mind and went to WC they would then have a significant issue.

I don’t believe they have any obligation to offer back pay.

There is, however, no time limit for lodging a WC claim. Trouble is you’ve now recovered. I still think I would call your WC authority and ask if there’s anything they could do to help.

Please know that I am sharing my experience in good faith but I am not an “expert” or lawyer. You can call Fair Work and WC on Monday and get some expert advice.

I’d really be curious to know how you go but no pressure. Post any time.

Kind thoughts to you

Fit for duty assessment advice

Summer Rose — Sat, 20 Feb 2021 13:30:03 GMT

Hi again

Just been thinking about the financial side of all this. Has your employer picked up all of your medical costs?

They can do this for you without you lodging a WC claim up to a certain limit. In Vic it’s just under $1,000.

King thoughts to you

Fit for duty assessment advice

Mark213 — Sat, 20 Feb 2021 20:17:27 GMT

Hi summer rose,

I 100% understand you are offering advice from an employers point of view and it is good to have someone who is an employer give scenarios of what could be happening, I appreciate this. I was told by fw that there isn't much I can do until I find out what the outcome is. My issue is since I have handed in my clearance it will be nearly 3 weeks next week and the way it was worded in HRs response is like they won't even have an outcome for our meeting next week. It was called a "catch up". It was mentioned to me by fw that if they do find me fit that they may have to back pay me from the date I was cleared. Fw offer limited advice.
They have not covered any medical costs besides sending me to their doctor. I think at this stage i will send them my recent medical certificate along with a note that i expect an outcome. Im just trying to think of ways to word it without sounding overly demanding. I also want to mention that my DR advised that their doctors report is incomplete because he never touched base with my Doctor. Anxiety can sometimes make you over explain so I'm not sure if I should say it or not.

Fit for duty assessment advice

Mark213 — Sat, 20 Feb 2021 20:33:59 GMT

I also wanted to mention if I am terminated I will go to fw. My partner has all the evidence ready for me. Once this is done I will also make a complaint about the lady in HR because of the way she made me sign a new contract implying that this job might not be for me if i dont sign, those were her words.

Fit for duty assessment advice

Mark213 — Mon, 22 Feb 2021 01:08:15 GMT

Last question and I'll update you with what happens on Wednesday:)

If I have been cleared to work since Feb 5th and they are taking longer to investigate conflicting reports, should they be paying me since Feb 5th now the hold up is on their end? Or does it still count as sick leave with out pay?

Fit for duty assessment advice

Summer Rose — Mon, 22 Feb 2021 02:18:28 GMT

Hi Mark

Quick questions before I respond properly. Did you make an application (eg fill out a form) to go on leave without pay? Did you provide an end date for the conclusion of the leave without pay period? If there’s no official paperwork how did you get on leave without pay?

Kind thoughts to you

Fit for duty assessment advice

Mark213 — Mon, 22 Feb 2021 04:54:25 GMT

No I didn't fill in any paperwork. They placed me on sick leave until I addressed their doctors report. I asked what happens when my sick leave runs out and they said I can use my annual leave and once that is exhausted it will be SLWOP. I had no choice and confirmed via email in Dec 14th because my Doctor was on leave returning January 18th and the next pysch appointment available was Jan 18th. Now they are investigating the conflict in medical reports since Feb 5th however I am fit to return. Their doctors report is incomplete because they never provided questions when my Doctor refused to speak over the phone. I was also not told their doctor will be contacting mine and that they couldn't get in contact. So he signed off the report saying he couldn't get speak to my Doctor over the phone and could result in implications with my employment.