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3 March 2015 Can you require an employee to provide medical evidence or attend a psychiatric examination?

By Richard Ottley, Partner


IN BRIEF

From time to time employers will be faced with an employee whose behaviour suggests that they may have an underlying medical condition affecting their mental health. Behaviours which may for example indicate depression include: irritability, lack of concentration, lateness for work and unexplained periods of absence. Whilst there are no easy solutions, there are various court decisions which shine a light on what an employer may do in these circumstances and whether they can require the employee to provide medical evidence including undergoing a psychiatric examination. 

This article focuses on two of those decisions being the decision of the Federal Court in Thompson & IGT (Australia) Pty Limited [2008] FCA 994 and a recent decision of the Federal Court in Australian & International Pilots Association v Qantas Airways [2014] FCA 32.  


Thompson v IGT

The applicant had been employed by the respondent IGT as a graphic artist and animator.  The applicant had experienced significant problems associated with a back injury predating his employment. He underwent various back procedures but continued to experience further degenerative back symptoms. 

Following numerous absences from work and based upon the longevity and continuation of the situation and with a lack of definitive medical evidence or information, the respondent sought to obtain medical reports to better understand the applicant's issues. The respondent arranged for the applicant to see two doctors. One was a general surgeon, the other a psychiatrist. 

The respondent attended the appointment with the general surgeon. The general surgeon took a patient history and wrote a report which concluded that the applicant was fit to perform his full range of duties.  Following the report the applicant was absent again citing a "medical condition" as the reason.  The applicant then sent an email saying he required treatment for 7 to 10 days. This request was inconsistent with the general surgeon's assessment as to his condition. 

Various periods of leave without pay were taken following which the respondent wrote to the applicant again requiring him to attend an appointment with a psychiatrist. The applicant objected to seeing the psychiatrist and asserted that a psychiatric assessment fell far beyond what was relevant to his condition.  He claimed that he had been discriminated against and that his condition was purely a physical one. He sought an injunction from the court, amongst other things, restraining his employer from demanding that he undergo a psychiatric assessment.

The Trial Judge, Goldberg J considered that in light of the history of the matter the request made by the respondent that the applicant attend an appointment with a psychiatrist was a reasonable one.  His Honour considered that the respondent was entitled to be concerned about the reasons for unexplained medical absences and inconsistencies in information provided by the applicant.

In considering whether discrimination had occurred, Goldberg J posed the question as to whether the applicant had been subjected to a detriment.  The answer to that question in turn depended upon whether the respondent was entitled to require the applicant to undergo an examination by a psychiatrist. Goldberg J then proceeded to look at the various legal principles governing this area of the law. 

Firstly Goldberg J noted that it was a well established principle that an employer may give an employee a "lawful and reasonable direction" which if reasonable and relates to the subject matter of employment requires observance. 

Goldberg J noted that it was well established that it was reasonable to direct an employee to attend a medical examination to determine whether the employee is fit to perform duties and whether they can do so safely.  Such duties were underpinned by occupational health and safety legislation.  He referred with approval to the decision in Blackadder v Ramsay Butchering Services Pty Limited [2002] 118 FCR 395 and Madgwick J's observations (not disturbed on appeal to the High Court). Those observations were to the effect that it was essential, for an employer to be able to require an employee, first, where necessary to furnish particulars or medical evidence affirming the employee's continuing fitness to undertake duties and secondly where there was a genuine indication of the need for it, on reasonable terms, to attend a medical examination to confirm fitness. Such terms should be implied by law, to give business efficacy to the employment agreement.

Goldberg J noted that the Disability Discrimination Act does not render a dismissal unlawful, where the disability prevents the employee from carrying out the inherent requirements of his or her work. Such matters make it appropriate for an employer to be able to obtain medical information that could be relevant to this question. 

It therefore followed that there are circumstances in which a requirement to provide medical information to an employer does not constitute a detriment in employment but is a necessary part or incident of the employment, provided it is made on reasonable terms and shown to be reasonably necessary.  In this case, the request was both made on reasonable terms and reasonably necessary and therefore was found not to be discriminatory.  Accordingly, the application for an injunction was dismissed.

Australian & International Pilots Association v Qantas Airways Limited

In this case, a Qantas pilot's treating doctor signed a medical certificate stating that the pilot was suffering from clinical depression and would be unfit for normal work for some 4 months.  A further medical certificate followed. Qantas then sought a written report from the applicant's treating doctor indicating diagnosis, prognosis and capacity to return to pre-injury duties and anticipated timeframe. At this point in time the Pilots Association became involved.

The Association expressed concern for the privacy of long haul pilots' medical conditions not being reasonably protected and for that reason had advised their members to only provide limited personal information. Qantas responded by asserting that it was both lawful and reasonable for Qantas to require pilots to provide medical reports and failure to do so may result in disciplinary action.  The Association responded by filing a notice of dispute with Fair Work Australia (on behalf of 3 members including the pilot in question) under the terms of an industrial agreement governing their employment. 

Things deteriorated further and the Association commenced proceedings under the adverse action provisions of the Fair Work Act on the pilot's behalf.  The allegation was that the pilot had been adversely treated because he had a "workplace right".  The workplace right was said to arise from the industrial agreement and related to the right to provide a medical certificate or other evidence of unfitness for duty, at his election. 

The matter came before Rares J in the Federal Court.  The first issue to be considered was whether the pilot had a workplace right. This in turn involved consideration of whether Qantas in requiring the medical information in question was acting under the industrial agreement or acting independently in exercising its common law rights under an implied term of the contract of employment as identified by Madgwick J in Blackadder.  The next issue was whether Qantas had taken adverse action against the pilot by threatening disciplinary action should he not provide the (detailed) medical report requested by Qantas. The final issue was whether Qantas made a threat of disciplinary action because the pilot had exercised a workplace right (eg to rely on the medical certificates he had supplied to Qantas so far and declining to do more). 

Rares J considered that the industrial agreement was silent with respect to concerns Qantas had raised about the pilot's diagnosis, prognosis, capacity to return to pre-injury duties and expected date of return to work.  There were good reasons for Qantas requiring such information which included rostering, retraining and lead time and necessary activities for a return to work.

Rares J considered that there was a necessity to imply a contractual right to Qantas to require its pilots to provide medical evidence of the kind in question and to attend meetings to discuss matters concerning their conditions.  This arose from obligations imposed on Qantas both by the industrial agreement and the Work Health and Safety Act.  He noted that an employee's statutory, certified agreement or other analogous industrial award based entitlement to take sick leave did not displace the contractual relationship in which at some point the employer is entitled to make its own business arrangements to adjust for the impact of the leave caused by the sickness of the employee, and to address its obligations under the Work Health and Safety Act

To conclude, Rares J considered that it would be "quite unrealistic to expect Qantas as an employer to be left with substantively no right or ability to require a sick employee to provide it with information of the kind sought here about the present and future position of a crew member who had been on extended leave".  He held that no adverse action had been taken because of the exercise of a workplace right and the application was dismissed.

Conclusion

The following points emerge:

  • Employers may under common law principles require employees to provide additional medical information or undergo a psychiatric examination in some circumstances.
  • The circumstances in which a requirement to provide such information must be shown to be reasonably necessary and the requirement must be made on reasonable terms.
  • Whether it is reasonable to request an employee to attend a medical examination will always be a question of fact as will the question of what are reasonable terms (the employer will need to meet all expenses). 
  • A sensitive approach is important including as far as reasonably possible respect for the privacy of the employee.
  • The need for an employer to be able to organise their business by having relevant medical information and also to safeguard the interests and health of all employees under OHS obligations underpin the employer's need to require medical examinations.
  • A direction to attend a medical examination can constitute a reasonable and lawful direction.  Therefore a failure to comply with it may support disciplinary proceedings including termination.
  • The above common law principles could be qualified or modified in some instances such as by express legislative or regulatory provision.

 For further information, please 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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