Pub­li­ca­tions

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


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.