Pub­li­ca­tions

Can an employ­er require an employ­ee to under­take a med­ical exam­i­na­tion? update

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. 

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