40.       MEDICAL CONDITIONS AFFECTING PERFORMANCE

40.1     Where a staff member’s capacity to perform the duties of their position is in doubt, the Relevant Senior Executive may require, in writing, the staff member to undergo medical examination by a qualified medical practitioner(s) chosen by the University and engaged at the expense of the University.

40.2     For completeness, where more than one consultation is required it is not necessary for the Relevant Senior Executive to provide a staff member with separate written requests.

40.3     The Relevant Senior Executive shall provide a staff member with reasonable written notice that a medical examination is required and a copy of this clause.

40.4     Where the staff member makes an application to their superannuation fund for ill health retirement or temporary disability benefit prior to the medical examination(s), the staff member cannot be required to attend a medical examination(s) in accordance with clause 40.1 until one of the following occur:

(a)       For a member of Unisuper or QSuper, after the payment of the temporary disability benefit ceases;

(b)       For a member of the University of Queensland Superannuation Plan after two (2) years of receiving a disability benefit; or

(c)        The superannuation fund determines that the person is ineligible under the rules of the fund to receive a temporary disability benefit (this does not apply in circumstances where the staff member is on sick leave but has not reached the expiry of the three (3) months qualifying period or such period of paid sick leave as the fund requires).

A copy of the medical report will be provided to the staff member unless medical advice recommends otherwise. The medical report will remain property of the University.

40.5     If the medical examination reveals that the staff member is unable to perform their duties and is unlikely to be able to resume them within a reasonable period, being not less than 12 months, the Relevant Senior Executive may:

(a)       Direct that a redeployment search commence for the staff member either to a commensurate position at the same classification level or a position at a lower classification level with salary maintenance for three (3) months in accordance with the relevant policy or procedure; or

(b)       Terminate the employment of the staff member in accordance with the notice required by the staff member's contract of employment or this Agreement (whichever is greater).

(c)        Prior to taking action to terminate the employment of a staff member, the Relevant Senior Executive may offer the staff member the opportunity to submit their resignation and, if such a resignation is offered, shall accept it and not proceed with action to terminate employment; or

(d)       if the University is unable to redeploy the staff member the provisions of clause 41 apply.

40.6     Where a staff member does not accept the findings of the medical report and where the staff member has contrary medical evidence that they are either able to perform their duties, or likely to be able to resume their duties within a period of no more than 12 months, they may request review of the report by a panel. The panel shall consist of three (3) medical practitioners, one (1) who shall be appointed by the University, one (1) by the staff member or by a person acting on their behalf, and one (1) by the President of the State Branch of the Australian Medical Association. The Panel shall not include the practitioner who made the initial report.

40.7     Any request to convene the panel must be received from the staff member or their Representative within ten (10) working days after the date of receipt of the medical report.

40.8     If a staff member has requested a panel to be convened, the Relevant Senior Executive shall not commence the redeployment search for the staff member or terminate the employment of the staff member in accordance with this process, unless and until the findings of the panel are received.

40.9     The Relevant Senior Executive may construe failure by a staff member to undergo a medical examination in accordance with these procedures as prima facie evidence that such a medical examination would have found that the staff member is unable to perform their duties and is unlikely to be able to resume them within 12 months. In this circumstance the Relevant Senior Executive may act accordingly, provided that such a refusal by a staff member in these circumstances shall not constitute misconduct nor lead to any greater penalty or loss of entitlements than would have resulted from an adverse medical report.

40.10   The provisions in this clause will not displace or over-ride any workers’ compensation schemes or relevant legislation either State or Federal.

40.11   Subsidiary Matters

(a)       A staff member who receives a temporary disability benefit from the superannuation fund shall not accrue leave entitlements during this period.

(b)       Where a superannuation fund determines a staff member is permanently disabled the University may consider the staff member’s employment has ceased.

40.12   Work Health and Safety Concerns

Nothing in this clause shall restrict any right the University may have to direct a staff member to attend a medical appointment where there are genuine work health and safety reasons for this. Any such direction shall operate independently of this clause and not be part of the procedure of this clause.