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12 May 2017 Can an employer require an employee to undertake a medical examination? – update

By Richard Ottley, Partner

Employers are regularly confronted with situations in which they need to obtain further medical information about injured or unwell employees who for various reasons, fail to cooperate with employer requests for such information and/or to attend an employer nominated doctor for a medical examination.

There are a number of Court decisions which have looked at the competing interests of an employee's right to privacy and an employer's responsibility to ensure they operate a safe workplace by, amongst other things, sufficiently understanding their employees' health status to enable appropriate management decisions to be made concerning staff safety.

Two decisions in March 2017 can now be added to the list of authorities which support an employer in its decisions to seek further medical information and where an employee unreasonably fails to provide it, to take disciplinary action including termination. 

This article looks at these two decisions: Grant v BHP Coal Pty Ltd [2017] FCAFC 42 (10 March 2017) and Laviano v Fair Work Ombudsman [2017] FCCA 197 (15 March 2017).

Grant v BHP Coal Pty Ltd

In Grant v BHP Coal the employee Mr Grant, attempted to return to work in April of 2013 after a period off work of approximately 8 months during which he had had little contact with his employer.  In support of his attempt to return to work he produced a number of medical certificates which were drafted in the simplest terms stating he was receiving treatment for a "medical condition".  His last medical certificate stated that he was "fit to return to his normal duties as and from 1 April 2013". 

Mr Grant's employer was not satisfied with this certificate and Mr Grant was requested to attend an appointment with a medical practitioner nominated by his employer, so that it could understand whether there were any limitations with respect to his fitness for work.  The letter which Mr Grant received from his supervisors stated: -

"As discussed I require you to attend a medical examination so that I can understand any limitation with respect to your fitness for work, and how this impacts on your ability to perform your substantive position as Mine Employee – Boilermaker at Peak Downs Mine…
I would like to take this opportunity to reinforce that we remain committed and focused on ensuring your safety at work. BMA has a duty of care to provide all employees with a safe working environment and given your injury, we need to be satisfied you can safely perform the inherent requirements of your role."

Mr Grant failed to attend (on 2 occasions) an appointment made for him with his employer's nominated doctor.  Due to that failure, he was suspended from his employment in accordance with the applicable Workplace Enterprise Agreement. Mr Grant was subsequently terminated on the basis he had refused to follow a lawful and reasonable direction of his employer. 

The decision to terminate was also referenced to other matters such as Mr Grant's electronic recording of conversations without consent, and refusal to cooperate and participate in the investigation process into why he refused to attend the appointments.  In any event Mr Grant sued for unfair dismissal. 

The matter was initially heard before the Fair Work Commission.  It then went on appeal to the Full Bench of the Fair Work Commission and from there to the Federal Court of Australia.  In the Federal Court Mr Grant sought to set aside the Full Bench decision which had affirmed the earlier decision of the Commission rejecting Mr Grant's claim for unfair dismissal.

The key issue the Federal Court had to address was whether the employer was entitled to require Mr Grant to submit to a medical examination because it had a statutory responsibility under Section 39 of the Coal Mining Safety and Health Act 1999 (Qld) (the Mining Act) which imposes a duty upon coal mine workers to ensure that no one is exposed to unacceptable levels of risk. 

The Federal Court agreed with the position taken by the employer that Section 39(1)(c) of the Mining Act supported the entitlement of the employer to direct Mr Grant to undergo medical examination before allowing him to work. Section 39(1)(c) of the Mining Act requires the taking of any reasonable and necessary course of action to ensure anyone is not exposed to an unacceptable level of risk. 

The Federal Court in Grant considered the issue of applicability of the Regulation under the Coal Act and whether an employer's ability to require a medical examination could only be valid if it conformed with the Regulation under the Act. The Federal Court stated that in its view such an approach would be "an inflexible approach, and indeed contrary to common sense, to find that the statutory regime permits no steps to be taken to ensure health and safety of persons in potentially dangerous mining environment otherwise than in accordance with any system developed pursuant to the Coal Regulation".

The decision of the Federal Court was appealed to the Full Bench of the Federal Court where it was unanimously dismissed.  The Full Bench was satisfied that section 39 (1) (c) of the Mining Act (and section 2 (d)) did curtail the right of an individual to personal liberty to the extent that coal mine workers may be required to attend medical examinations if the circumstances contemplated by those provisions were met.  That is to say it rejected the employee's argument that because these provisions did not declare in express terms that a coal mine worker could be required to undergo a medical examination, the legislation should be treated in such a way as to limit the scope of the legislation to require an employee to undertake a medical examination. 

Laviano v Fair Work Ombudsman

The Federal Circuit Court was required to consider whether the applicant had been dismissed because he suffered a disability, was discriminated against on those grounds and because he had exercised a workplace right to take personal leave due to his disability. 

In 2004 the applicant who was an employee of the Fair Work Ombudsman, was absent from work for a number of periods due to a psychological illness which was found by the Court either to be major depressive disorder or adjustment disorder comprising elements of depression and anxiety.

The applicant's record of attending medical examinations organised by his employer, was poor.  In fact the Court found that the applicant had failed to attend medical examinations or assessments on six occasions between July and November 2014 save for one, where he was late and the assessment could not proceed.

It was the applicant's failure to communicate with his employer which ultimately led to his termination.  In particular there was an assessment scheduled for 27 November 2014 which did not proceed because the applicant claimed he was not aware of it, as he had not opened correspondence and emails from his employer since the middle of October until his return to work on 23 December 2014. He had taken this course of action on medical advice.

The Court did not accept the applicant's contention that he was not checking his emails.  It determined also that before 15 December 2014 the employer was not aware that the applicant had received advice from his psychologist not to open any communications from the employer. 

Of significance, was the Court's finding that the applicant had taken no steps directly or through a third party between the middle of October and 15 December 2014, to let his employer know that he would not be communicating with them or why.  Whilst the applicant's GP sometime after 29 October 2014 had told the applicant's employer that the applicant was unable to attend any work or compensation matters, this could not have reasonably led the employer (prior to 15 December 2014) to conclude that the applicant was incommunicado and that the employer could not arrange for the applicant to be medically assessed.   

The Court found the applicant's behaviour unreasonable and to quote his honour Judge Altobelli:
"The Court finds that it was unreasonable in all the circumstances for the applicant to simply and in effect, 'shut down' all communication between Respondent and himself given the circumstances and history of his relationship with the Respondent and then to use his self-imposed ignorance not even as a shield but as sword in the present proceedings."

In conclusion, the Court found that on balance the applicant would have been aware of the medical examination on 27 November 2014 but chose not to attend.  The employer had chosen to dismiss the applicant for his non-attendance as stated in the letter of termination and adverse action was not taken because the applicant had exercised a workplace right to take leave.
The court also rejected the argument that dismissal was indirectly discriminatory because the applicant had failed to comply with the requirement to attend a medical assessment with which he could not comply (due to his condition).  The Court found that the applicant knew of the assessment and did not have a disability that precluded him from attending.  In the Courts words: -

"The applicant is no more a victim of indirect discrimination than is a man who puts his hands over his ears so he cannot hear oral instructions, or a man that closes his eyes so he cannot read written instructions".

Conclusion

Whilst neither of the above decisions represent any significant development in the law, they are useful precedents that serve to highlight the pre-eminence of an employer's entitlement to require employees to undergo a medical examination and assessment where reasonably necessary to manage the work, health and safety aspects of the workforce. 
The decision in Laviano highlights that an employee has an obligation to communicate adequately with their employer even where they are ill.  This can be achieved by the employee authorising a third party such as a medical practitioner to inform their employer of their medical condition and any medical advice given to the employee not to communicate with their employer until their condition improves.  In Laviano, the applicant's failure to ensure that this occurred, played a significant role in the decision and ability of the employer to terminate his employment. 

For more information, contact:

Richard Ottley, Partner  |  Phone: +61 2 9233 5544  |  Email: rbo@swaab.com.au

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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