Managing ill and injured workers – when can employers direct employees to attend a medical examination?

Daniel Cole v PQ Australia Pty Ltd T/A PQ Australia [2016] FWC 1166

An unfair dismissal case published by the Fair Work Commission last week provides important guidance on when employers can require ill or injured employees to attend a medical examination before they return to work.

Employers have a duty under occupational health and safety legislation to ensure the health and safety of workers. For this reason, it has long been recognised that:

1. employers can direct their employees to attend medical examinations to determine that they are fit to safely perform their duties, provided that the employer’s direction is reasonable; and
2. where an employee refuses a reasonable direction to attend a medical examination, the employer may have a valid reason to dismiss them.

In last week’s case the applicant had taken one day of personal leave. He later provided his employer with a medical certificate that said he was suffering depression and was receiving treatment. In response, the employer directed the applicant not to return to work until he attended a medical examination with a company doctor, to confirm that he could do his job safely. The employee refused to do so and the employer ultimately dismissed him, for reasons including his failure to attend the medical examination.

The Commission found that the employer had no reasonable basis to assume that the employee had any illness that related to his capacity to perform the inherent requirements of his job. This was particularly so where the employee had only been absent for one day, and where he was receiving treatment for his illness.

The Commission’s decision included a useful outline of the matters that it would consider in deciding whether any requirement to attend a medical examination was reasonable:

• Is there are genuine need for the examination, such as long work absences, or absences without evidence of an injury/illness that relate to the employee’s ability to perform the inherent requirements of their job?
• Has the employee already provided adequate medical information that explained their absences and showed their fitness to perform their duties?
• Is the industry or workplace particularly dangerous or risky?
• Are there legitimate concerns that the employee’s illness/injury could impact on others in the workplace?

The Commission also emphasised that where a medical assessment is required, the medical practitioner should be clearly advised of the employer’s concerns, which must be focused on the inherent requirements of the job and the employee’s ability to perform them.