56 Medical Retirement

  1. Academic and ELC Teaching Staff Collective Agreement 2014–2017
    1. Following the production of a written statement of reasonable concerns by a relevant supervisor, provided to the appropriate HRS Manager, that the capacity of an employee to perform their duties is in serious doubt due to health reasons, the University may require, in writing, an employee to undergo a medical assessment by a medical practitioner chosen by the University.
    2. The employee will be given written notice of not less than one month.  The written advice will also contain a copy of this clause and that an employee may wish to contact their superannuation fund about temporary or permanent disability. A shorter period may be mutually agreed having regard to the availability of medical services. Agreement will not be unreasonably withheld.
    3. When the written notice is given, it will contain a copy of this clause, and the employee may elect during the notice period in subclause 56.2 to apply to his/her superannuation fund for ill-health retirement or temporary disability benefit. The University will suspend any action under this clause while an application is under consideration, or the employee is demonstrably meeting prerequisites in order to make such an application.
    4. Where the superannuation fund decides that the employee, following a period of receipt of a temporary disability benefit, is capable of resuming work and the University elects to dispute this decision, the University may proceed in accordance with this clause to seek the First Report.
    5. The cost of the medical examination and the reasonable expenses of the employee in attending the examination will be borne by the University.
    6. The relevant position statement/classification descriptor and a statement of the University's concerns will be provided to the medical practitioner as a basis for assessment. The employee will be provided with a copy of these and given an opportunity to provide a response, including material from the employee's own registered health practitioner, to the medical practitioner.
    7. The employee will remain on paid sick leave during the notice period. If the employee’s entitlement to sick leave has been exhausted, they can use annual leave or long service leave if applicable.
    8. The medical practitioner will be asked to provide a report (the First Report) about their assessment, the purpose of which is to determine whether the employee is fit or not to perform the employee’s duties and is likely or not to be able to resume them within a reasonable period being no less than 12 months. If it is a temporary incapacity (i.e. of a duration of less than 12 months), the assessment will include the extent of the incapacity, expected duration, and whether reasonable accommodation measures could address the issues. If reasonable accommodation measures are recommended these should be described.
    9. A copy of the First Report made by the medical practitioner will be made available to the University, the employee and the employee’s doctor.
    10. If the First Report reveals that the employee is unable to perform his or her duties and is unlikely to be able to resume them within a reasonable period, being not less than twelve (12) months, the University may, subject to sub clauses 56.9 and 56. 10, terminate the employment of the employee in accordance with the notice required by the employee's contract of employment, or where no notice is specified a period of six (6) months. The employee will receive payment in lieu of notice.
    11. However, prior to taking action to terminate the employment of an employee, the University will offer the employee the opportunity to submit a resignation and, if such a resignation is offered, will accept it and not proceed with action to terminate employment.
    12. If the employee wishes to appeal the findings contained in the First Report, the employee must do so by giving the University written notice of an appeal within 14 days of the First Report being made available, and the Vice-Chancellor shall not terminate the employment of the employee in accordance with subclause 56.9 while the appeal process is underway.
    13. Appeal Process
      1. an independent specialist agreed to between the University and the employee, or where the employee requests the NTEU, will be appointed to carry out a second assessment and provide a Second Report.
      2. Every effort will be made by the University, the employee and the NTEU as applicable to appoint the specialist no less than 7 calendar days from the employee’s appeal being received by the Vice-Chancellor. If agreement cannot be reached within this period, the President of the NSW Branch of the AMA or of the relevant college of specialists will be asked to nominate an appropriate independent specialist.
      3. The nominated specialist cannot include any practitioner who has made any other medical assessment or report relating the medical retirement process for this employee, or who has otherwise treated this employee.
      4. The cost of the second assessment by the independent specialist will be borne by the University.
      5. The employee will remain on paid sick leave during the notice period. If the employee’s entitlement to sick leave has been exhausted, they can use annual leave or long service leave if applicable.
      6. Before making an assessment, the independent specialist will be provided with the relevant position statement/classification descriptor, a statement of the University's concerns, and the First Report. The employee will be able to provide the independent specialist with their responses, including material from the employee's own registered health practitioner or specialist. The independent specialist is to be provided with this information from the employer and employee within 7 calendar days of the appointment of the independent specialist.
      7. The independent specialist will be asked to assess whether the employee (whether on the grounds identified in the First Report or otherwise) is fit or not to perform the employee’s duties and is likely or not to be able to resume them within a reasonable period being no less than 12 months.
      8. The independent specialist will make their assessment of the employee, and provide a written report (Second Report) to the University regarding the employee’s fitness to perform their duties. In making their assessment, they may make further enquiries as they deem necessary. They will be requested to do so as expeditiously as possible, and no longer than one month after they receive the information in subclause 56.13.6.
      9. The University will provide the Second Report to the employee.
      10. If the Second Report confirms the findings of the First Report, or states that the employee (whether on the grounds identified in the First Report or otherwise) is not fit to perform the employee’s duties and is unlikely to be able to resume them within a reasonable period being no less than 12 months, then the University may provide the employee with written notice of termination of the employee’s employment effective immediately, in which case the employee will receive payment in lieu of the notice period applicable to their contract of employment.
      11. If the Second Report does not confirm the findings of the First Report, or provides that the employee is fit to perform their duties, or will become so fit within a reasonable period being no more than 12 months, then the University will rely on the Second Report as the basis on which to determine the employee’s return to work.
    14. The University may construe a failure by an employee to undergo a medical examination in accordance with these procedures within 2 months of a written notification to do so as prima facie evidence that such a medical examination would have found that the employee is unable to perform his or her duties and is unlikely to be able to resume them within 12 months. The University may then terminate the employee’s employment, provided that such a refusal by an employee in these circumstances will not constitute misconduct nor lead to any greater penalty or loss of entitlements than would have resulted from an adverse medical report.
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