Avoidance of capacity assessment justified dismissal of “uncooperative” DSW

The Fair Work Commission has upheld the dismissal of a Disability Support Worker (DSW) who had been fully cleared to resume duty following a short absence covered by worker’s compensation but repeatedly refused shifts citing injury and twice failed to attend an agreed medical assessment at the expense of her employer.

The DSW had been working for her employer supporting NDIS Participants in their own homes for just under a year when she sustained an injury assisting a Participant in June 2025, which resulted in a successful worker’s compensation claim. After a brief period of total incapacity, the DSW resumed modified duties under an agreed plan, which remained in force until early-August, when the orthopaedic specialist for worker’s compensation certified the DSW as being fully fit to resume her pre-injury duties.

In September 2025, whilst the DSW was engaged in a disciplinary process regarding her alleged “disrespectful” and unsafe behaviour during a training session conducted on 21 August, she requested to be removed from shifts at the Participant’s residence where the injury had occurred, on the basis that her doctor had advised her not to participate in manual handling transfers. The DSW subsequently produced a medical certificate from her GP which stated that she was unable to “do unsafe manual handling, supporting > 100kg patients and having twisting movement of back and pelvic joints.” The medical certificate, issued 18 September, was backdated to 19 June (when the injury had occurred) and indicated the restrictions were “ongoing”. The DSW was ultimately issued a formal warning in reference to her conduct during the August training session – which she later sought to dispute – whilst she separately continued to refuse rostered shifts in the Participant’s home citing the supplied medical advice of 18 September.

Acknowledging the conflicting nature of the medical advice from the worker’s compensation orthopaedic specialist and the DSW’s own doctor, in late-October the employee was placed on leave without pay and asked to attend a Functional Capacity Evaluation (FCE). The DSW reluctantly agreed, conveying to management that the timing of the FCE “will need to fit with my availability”, but she failed to attend for either of the two appointments made for her. In the first instance, the DSW made insufficient efforts to relay that she was purportedly experiencing hip pain that prevented her from travelling to participate in the assessment, which left the employer exposed to a cancellation fee of more than $500. The FCE was rescheduled to 1 December and a direction issued for the DSW to attend; the employee repeatedly insisted she was not available but failed to provide any further explanation for her inability to participate.

On 28 November, the employer resorted to issuing the DSW with a notice to show cause why her employment should not be terminated on the basis she had failed to follow a reasonable direction from her supervisor and, not provided sufficient medical information to establish a valid reason for her continued absence from the workplace. The DSW provided a written response on 1 December, claiming to have been unable to attend the rescheduled FCE appointment because she had a prior commitment to present an academic paper for assessment which she had not previously disclosed in the interest of maintaining her “privacy”. The employer informed the DSW of the termination of her employment on 9 December, with notice paid in lieu. The termination letter identified the dismissal was occasioned due to failure “to comply with a reasonable direction to provide further medical information to establish a valid reason for your continued absence from the workplace and/or to attend a FCE within a reasonable timeframe.”

Commissioner Chris Simpson confirmed the employer’s direction to attend the FCE had been reasonable, noting, “there was a clear conflict between the full medical clearance provided by the Orthopaedic Specialist and the opinion of the [DSW’s] General Practitioner.” He further observed the DSW had successfully performed work that “would appear to be inconsistent” with the backdated medical certificate she supplied on 18 September, meaning the “direction given by the [employer] for the [DSW] to attend the FCE was lawful and reasonable in all of the circumstances.” In addition, Commissioner Simpson accepted the DSW had been warned of the consequences of failing to attend for the rescheduled FCE on 1 December, but that she never provided a satisfactory explanation or suitable evidence in support of her non-compliance (on either occasion). Accepting the employer’s argument that the DSW had been deliberately “uncooperative” in “resisting attending the FCE”, he determined the employer established a valid reason for dismissal, concluding:

“I accept the [employer’s] submission that the balance of the evidence supports the conclusion that, at the time of the termination of her employment, the [DSW] was not willing to adhere to and did not follow the [employer’s] reasonable direction to attend an FCE within a reasonable time.”

Separately, Commissioner Simpson was satisfied that the dismissal process had been procedurally sound, with the employee having been given a reasonable timeframe to respond to the employer’s concerns and notice having been observed on termination. Although the DSW had been on leave without pay “for a considerable period” prior to dismissal, the Commissioner noted the DSW “had requested to be removed from her roster” and “elected not to use accrued leave”. Critically, Commissioner Simpson assessed:

“The [employer] was not obliged to find an alternative role for the [DSW], and the [DSW’s] request not to perform her allocated duties in combination with the conflicting medical advice was a reasonable basis for the [DSW] not to be provided other work.”

The Commissioner was satisfied “there was a valid reason for termination, and that the procedure followed by the [employer] was not unfair.”

Steel v Endeavour Foundation [2026] FWC 2162 (8 September 2026)