When managing employees with medical conditions, employers are not expected to discern an employee’s capacity to work or identify appropriate workplace adjustments. Instead, decisions should be made based on the medical evidence available to the employer at that time.
This position has helpfully been reinforced by the Fair Work Commission (FWC) in the unfair dismissal decision of Sim v Monash Health [2026] FWC 2633.
The employee commenced employment with Monash Health (the Employer) in or around January 2025 as an International Medical Graduate Affairs Coordinator.
Within weeks of commencing employment, the Employer had identified several concerns regarding the employee’s performance including a failure to attend work on time, a failure to notify anyone of his non-attendance, regular unexplained absences and a failure to complete tasks in a timely manner.
In February 2025, the Employer met with the employee to discuss these concerns. In this meeting, the employee disclosed that he was diagnosed with Attention-Deficit/Hyperactivity Disorder (ADHD) and that this impacted on his time perception, attention, productivity and information processing.
The Employer implemented a Management Support Plan (MSP) with adjustments including flexible start times and hybrid work from home arrangements as well as guidance and mentoring to assist the employee in completing his work. Despite these measures, the employee’s poor attendance and performance continued.
In May 2025, the employee took various periods of leave due to a motor vehicle accident and then stopped attending work altogether. At around this time, he made a complaint alleging workplace bullying and unbalanced workload distribution which the employer found to be unsubstantiated following investigation.
Soon after this, the employee submitted a workers compensation claim alleging psychological injury because of workplace bullying, burnout from workload and harassment – however this claim was rejected soon after lodgement.
In the months that followed, the Employer attempted to consult with the employee regarding his return to work, however the employee refused to return until accommodations or adjustments had been implemented to ensure his psychological safety. He refused to accept that the MSP was a reasonable adjustment.
The Employer requested on at least 10 occasions that the employee provide a medical report addressing his capacity for work and the reasonable adjustments necessary for him to safely perform his duties, however the employee refused to provide this information.
Instead, the employee sought to rely on the Certificates of Capacity (CoCs) produced in support of his workers compensation claim which stated that the employee had capacity to perform work for two hours a day, two days a week on “non-stressful work”.
The Employer informed the employee that it could not accommodate these working hours due to the requirements of his role, and it could not accept the CoCs because they failed to provide any information on the types of adjustments required for the employee to return to work.
Ultimately, in December 2025, the Employer dismissed the employee on the basis that he was unable to perform the inherent requirements of his role.
The employee lodged an unfair dismissal application in the FWC alleging that the Employer did not have a sound, defensible and well-founded basis to conclude that he could not perform the inherent requirements of his role.
After considering the evidence of both parties, the FWC concluded that the Employer had a valid reason for terminating the employee.
The FWC acknowledged that the only medical evidence available to the Employer at the time of the dismissal was the CoCs, which stated that the employee could perform up to four hours of work each week on “non-stressful work”.
In accepting the Employer’s evidence regarding the inherent requirements of the employee’s role, including that it was a full-time position involving time-sensitive work and high engagement, the FWC was satisfied that the employee’s incapacity meant that he was unable to fulfil these requirements. It stated that even if the employee’s role performed some “non-stressful work”, this would mean that he only had capacity to perform 10% of the role.
The FWC was critical of the employee’s “persistent and inexplicable” refusal to provide medical information that would have assisted the Employer in assessing his capacity or consider reasonable adjustments. It found that the employee was incorrect in assuming that the Employer bore the entire responsibility to discern the employee’s capacity for work based on the unsatisfactory CoCs. It went on to state at[49]:
This is not a case where the [Employer] acted hastily. It requested and gave the [employee] an opportunity to furnish further medical and capacity information on at least 10 occasions, all of which requests and opportunities were rejected by the [employee]. It is difficult to envisage a situation where an employee could have been less co-operative.
Finally, the FWC rejected the employee’s submission that the Employer failed to comply with its Injured Worker Procedure (Procedure) because it did not require him to under go an independent medical examination (IME). It stated that the IME was not mandatory under the Procedure nor was it required when the employee’s CoCs comfortably established that he could not meet the inherent requirements of the role.
The FWC noted that if anything, it was the employee who had failed to comply with the Procedure because he failed to comply with the Employer’s reasonable directions relating to his fitness for work and absence from work.
The FWC therefore dismissed the application on the grounds that there was a valid reason for dismissal, and the dismissal was not harsh, unjust or unreasonable.
The FWC has provided a helpful reminder that medical evidence provided by employees should be considered on face value and employers are not expected to assess or infer whether the employee has capacity to work based on such evidence.
Of course, if there is ever a situation where medical evidence is deemed inadequate, steps should betaken to obtain further medical information on the employee’s capacity for work before any decision is made regarding their employment, as was done by the employer in this decision.
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