Review case—Complaint about a return to work and victimisation for making a whistleblower report

Disclaimer

The following case summary illustrates how the Merit Protection Commissioner has reviewed a particular case and should not be relied on as legal advice

An APS employee sought review by the Merit Protection Commissioner of the agency's decision not to implement a return to work after a fitness for duty assessment which the applicant alleged constituted an adverse action taken against the employee for making a whistleblower complaint. Section 16 of the PS Act prohibits victimisation or discrimination of an employee because they have made a whistleblower complaint.

The employee was on extended leave for a medical issue and was directed to attend a medical examination conducted by an agency nominated medical practitioner (fitness for duty assessment). The medical practitioner concluded the employee was not fit for duty. Several months later the employee was again assessed by an employer nominated medical practitioner as fit for work but with the proviso that the employee not return to work in that agency. On the basis of this conflicting advice, the agency advised the employee that they did not consider they were fit to return to work. On review, the employee argued that the agency had disregarded the medical advice and that they should be allowed to return to work in a different part of the agency. The employee also alleged that the agency decision not to return them to work was an adverse action taken against them for making a whistleblower complaint.

The Merit Protection Commissioner considered that the agency's decision was reasonable and that the medical practitioner's opinion about where the employee should return to work was not the only relevant consideration. While a decision-maker can consider expert evidence, such as medical reports, they are not bound to accept it. In this case, in the view of the Merit Protection Commissioner there was conflicting medical evidence and the agency could not be confident that the employee was in fact fit to resume duty.

The Merit Protection Commissioner also concluded that as the agency's interpretation of the medical officer's report could be supported, and that the decision not to return the employee to work on receipt of that report was appropriate. The Merit Protection Commissioner concluded that the agency's action was not evidence of a breach of section 16 of the PS Act.