Sacked Canberra public servant's medical advice fail

A Canberra public servant sacked for refusing to front up to her "injurious" workplace on the advice of her doctor has lost an unfair dismissal appeal.

The Fair Work Commission has backed the Defence Department after it took the advice of its own medical specialist over that of the employee's psychiatrist and ordered its EL1 employee to return to her desk.

When Cammui Tunks, a 15-year-veteran of the department, did not comply with the return to work order, citing medical advice, she was dismissed in May 2014.

Mrs Tunks said she was afraid to go back to her job after a series of run-ins with supervisors and been in and out of work on stress leave since December 2012 when Defence sent her to see independent medical examiner  James Hundertmark in September 2013.

The psychiatrist found Mrs Tunks had a "phobic avoidance of the workplace" but was fit to resume some duties in a return-to-work program, although it made sense that the public servant's contact with one of her managers should be minimised.


"From a pragmatic perspective, it may well be appropriate to move her to a new supervisor but it is understood that there are limited opportunities for this to occur within the Department," Dr Hundertmark wrote.

Another doctor who examined Mrs Tunks as part of her related workers' compensation claim came to a similar conclusion.

But in December 2013 there was another confrontation with a departmental manager and Mrs Tunks went home and has not been back to work since.

In April 2014, after being refused a lengthy period of leave without pay, Mrs Tunks went to consulting psychiatrist William Knox who expressed the opinion that the public servant could not be treated fairly by Defence.

"Practicality indicates that there will not be mediation on account of the power hierarchy within Defence, with your client [Mrs Tunks] being expected to be the one to make adjustments, no doubt while other parties feel quite supported and justified in their perspective," Dr Knox wrote to Ms Tunk's lawyers.

"My recommended treatment for your client is to remain in the care of her treating professionals and to avoid any return to the Department of Defence.

"I believe that Mrs Tunks does likely have a good prognosis providing she is able to separate from the injurious environment with the Department of Defence, and find other employment."

But Defence was not interested in Dr Knox's opinion and ordered its employee back to work, sacking her the following month when she did not front up.

In her unfair dismissal claim Mrs Tunks argued the return-to-work directions were unreasonable and that Defence was not making enough of an effort to protect her from contact with the manager she feared.

But the commission came down on the side of the employer, finding that under the Defence Enterprise Collective Agreement the department was within its rights to accept the evidence of its own medical expert over that of the employee.

The appeal was dismissed.