When an employee attributes poor attendance, missed deadlines or disengagement to a medical condition – such as ADHD – employers should respond with genuine support and a structured process. A recent Fair Work Commission decision is a timely reminder, however, that employers are not required to “work it out” from vague medical material, particularly where the employee refuses to provide functional capacity information needed to plan reasonable adjustments and a safe return to work. 

Learn more about the case and outcomes below.

Case summary: Fair Work Commission upholds dismissal where employee refused to provide capacity evidence 

The employee commenced on a fixed-term contract as an International Medical Graduate Affairs Coordinator. Within weeks, management raised repeated concerns about conduct and performance, including: 

• turning up late without notifying anyone; 
• disappearing for periods without explanation; and 
• missing deadlines and failing to complete required work. 

The employee attributed these issues to ADHD, stating it affected time perception, attention and focus, productivity and information processing, and caused fatigue. 

Later, after a period away from work, the employee also raised workplace concerns including a bullying complaint. After that complaint was investigated and not substantiated, there was an extended stalemate regarding their return to work, with the employee asserting that no arrangements or adjustments had been made to ensure a psychologically safe return. 

What the employer did (and why it mattered)

From an employer-risk perspective, the employer’s actions were central to the outcome. The Commission accepted the employer: 

1. Raised concerns early and directly: Management addressed the attendance and performance issues soon after they emerged, seeking explanations and setting expectations. 

2. Implemented a practical support plan: Rather than moving immediately to discipline, the employer introduced a management support plan, which included: 

• flexible start times; 
• hybrid work-from-home options; and 
• mentoring and support arrangements. 

3. Recorded specific examples of the ongoing issues: The employer was able to point to concrete incidents demonstrating the problem continued – for example, needing to chase the employee, and receiving a late-morning message stating he had slept through his alarm, was exhausted and needed the day off. 

4. Investigated the bullying complaint separately: The bullying complaint was investigated and ultimately rejected. Importantly, the employer did not treat the complaint itself as a reason to avoid managing capacity or performance – those processes continued in parallel. 

5. Repeatedly sought work capacity information to enable return-to-work planning: Over an extended period, the employer asked on multiple occasions for a medical report addressing the employee’s capacity to perform the role and what reasonable adjustments were required for him to undertake duties and safely return to work. 

The Commission noted the employer provided many opportunities – referring to at least 10 occasions – to obtain and provide the information. Those requests were repeatedly rejected by the employee. 

6. Allowed significant time to pass before termination: The employment ended approximately six months after the employee had ceased performing the role’s requirements, with dismissal based on inability to perform the inherent requirements for that period (and refusal to cooperate with reasonable capacity directions). The Commission expressly observed this was not a case of acting hastily.

 Why the Fair Work Commission found the dismissal was fair 

Deputy President Masson accepted that: 

• the employee did not provide supporting medical information regarding the claimed ADHD; and 
• the employee did not, prior to termination, identify workable adjustments that he sought or that were appropriate (supported by medical evidence). 

A key finding for employers is that the employee was under a “misapprehension” that the employer bore the responsibility to discern what he could and could not do from inadequately worded certificates. The Commission accepted the employer’s repeated requests were made because the information provided was not useful for determining capacity and reasonable adjustments.

The Commission also considered the employee’s approach as significantly uncooperative and noted the employee had demonstrably refused to comply with reasonable directions relating to fitness for work and absence from work. On that basis, the Commission was “comfortably satisfied” there was a valid reason for dismissal and found it was fair.

Managing ADHD (or another condition) affecting employee attendance and performance issues 

This case sets out a best practice way to manage attendance and performance issues and issues regarding an employee’s return to work where the employee holds concerns about their return. While this case centres around ADHD, the learnings can be applied across other conditions affecting, or claiming to affect an employee’s attendance, performance and return to work. 

Should a business experience a similar situation, it is recommended that they consider the following: 

1. Provide support early, but keep expectations clear

A practical lesson from this case is that you can respond supportively while still holding expectations.

Early steps employers should consider: 

• confirm start-time, notification and availability expectations in writing; 
• require timely communication if the employee will be late or absent; 
• set priority tasks and measurable deliverables; and 
• schedule regular check-ins (e.g., weekly) to track progress. 

2. Use a support plan with defined boundaries 

Support measures are most effective (and defensible) when they are structured and time-bound, for example: 

• flexible start time within an agreed window (not open-ended); 
• hybrid arrangements with defined in-office days and availability hours; 
• mentoring and regular check-ins; and 
• a review date (e.g., after 4–6 weeks) to assess whether performance is improving. 

3. Ask for functional capacity information (not personal medical history) 

Employers are generally entitled to request information reasonably necessary to manage: 

• fitness for work and WHS obligations;
• ability to perform inherent requirements; and 
• what adjustments are required and for how long. 

Focus the request on functional capacity, such as: 

• hours/days the employee can work now; 
• restrictions relevant to attendance, workload, deadlines or communication; 
• recommended adjustments and whether they are temporary or ongoing; and 
• anticipated review points and progression. 

This case reinforces that if the medical material provided is too vague to support practical adjustments, the employer can request clarification. 

4. Make the request reasonable, specific and repeated (if needed) 

The employer’s repeated written requests mattered because they demonstrated procedural fairness and patience. A best-practice request should explain: 

• why the information is required (to identify adjustments and enable safe return); 
• the limited scope (capacity and restrictions, not full diagnosis detail); 
• how the information will be handled confidentially; and 
• the deadline and consequences if it is not provided (i.e., decisions may be made based on available information). 

5. Evidence the inherent requirements of the role 

If termination becomes a possibility, employers should be able to show what the role inherently requires, for example: 

• reliable attendance and responsiveness; 
• time-critical coordination and meeting deadlines; and 
• consistent engagement with internal stakeholders. 

The stronger and more role-specific your evidence, the easier it is to demonstrate that extended inability to perform those core duties (even with adjustments) creates a valid reason for termination.

6. Procedural fairness is not optional 

In this case, the employer’s approach was strengthened by: 

• giving multiple opportunities to provide capacity information; 
• trying a support plan; 
• documenting incidents and communications; and 
• allowing significant time before termination. 

This is a strong reminder that even where the operational impact is severe, employers should avoid rushing and should build a defensible, well-documented process. 

7. Run complaints and capacity processes in parallel 

Where an employee raises bullying or psychological safety concerns, investigate properly – but avoid allowing a complaint to pause: 

• reasonable medical/capacity requests; 
• return-to-work planning; or 
• ongoing performance expectations (where the employee is at work). 

In this case, the employer investigated the bullying complaint and still continued to seek capacity information to support return-to-work planning. 

Practical checklist: Employer actions which reduced risk in this case 

Employers facing similar circumstances should consider: 

• addressing repeated lateness/absence promptly and documenting concerns; 
• implementing a structured support plan which includes flexibility and accountability; 
• making clear, written requests for functional capacity and adjustment recommendations; 
• repeating the request where certificates are vague and do not enable planning; 
• documenting the employee’s responses (including refusals); 
• considering inherent requirements and operational impact with evidence; and 
• seeking advice before any termination decision, ensuring the process is fair and the reason is clearly articulated. 

How Business Chamber Queensland can help 

Managing performance, health-related absence, reasonable adjustments and workplace complaints at the same time can expose employers to unfair dismissal, discrimination and WHS risks if the process is not carefully handled. 

Business Chamber Queensland’s Workplace Relations team can assist employers with: 

• drafting fit-for-work and functional capacity requests (including treating practitioner questionnaires); 
• structuring support plans, attendance expectations and review processes; 
• managing performance concerns where a condition is raised; 
• handling bullying/grievance processes alongside return-to-work planning; and 
• risk-assessing and preparing for defensible termination decisions where capacity remains unclear or cooperation is not forthcoming. 

For tailored advice, contact Business Chamber Queensland’s Workplace Relations team to discuss your circumstances and next steps. 

Case details:Yau Yong Ryan Sim v Monash Health [2026] FWC 2633 (19 July 2026)