Failure to return to duty despite medical evidence
An employee failed to return to work after an extended absence from work while on compensable leave. The agency had independent medical advice indicating that the employee was fit to return to work and directed that they do so on a particular date.
The employee did not report for duty on the nominated day and presented medical advice from a general practitioner. The Merit Protection Commissioner was not able to review the employee’s concerns about the medical evidence, or whether they were fit to return to work, as these were matters covered by the Safety, Rehabilitation and Compensation Act 1988 and are excluded from review under the Public Service Regulations 1999.
However, the Merit Protection Commissioner was satisfied that the agency had a reasonable basis (the independent medical opinion) for concluding that the employee should have returned to duty on the nominated day.
The agency advised the employee that they were on ‘unauthorised leave’. The employee viewed this as a punitive decision as it put them on a form of leave that resulted in no payment of salary. The Merit Protection Commissioner noted that the employee was not on any form of leave and the agency’s actions were not punitive. The employee’s unauthorised absence was not a result of any decision by the agency. Rather it was a result of the employee’s failure to return to work to perform their duties.
The Merit Protection Commissioner was satisfied that the agency was entitled to treat the employee’s absence as unauthorised and to suspend the payment of their salary.