How to avoid pay­ing for employ­ee non-work relat­ed injuries

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In Brief

Employ­ers are increas­ing­ly becom­ing aware that allow­ing an employ­ee to return to work after suf­fer­ing an injury, espe­cial­ly a non-work relat­ed one, can be risky busi­ness. If an employ­ee returns to work before they are fit to do so and con­se­quent­ly aggra­vates his or her con­di­tion, the employ­er may find they are liable for a work­ers’ com­pen­sa­tion claim.

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A recent case has found that in order to pro­tect both par­ties it is not unrea­son­able to direct an employ­ee return­ing from injury to attend a med­ical assess­ment with a physi­cian of the employ­er’s choice before com­menc­ing back at work.

The Fair Work Com­mis­sion has upheld a deci­sion by Peak Downs Mine’s man­age­ment to dis­miss a work­er for fail­ure to attend a med­ical assess­ment after an eight month absence from work due to injury. Dur­ing the peri­od of absence there had been no evi­dence of spe­cif­ic steps tak­en by the work­er to pre­pare for his return to work oth­er than return­ing to the site with a med­ical cer­tifi­cate stat­ing that the work­er was receiv­ing treat­ment for a ​“med­ical condition”.

Due to the lim­it­ed and non-spe­cif­ic doc­u­men­ta­tion relat­ing to the employ­ee’s injury, man­age­ment sought to sat­is­fy itself that the work­er was in fact fit to return to work on a mine site, which involved per­form­ing poten­tial­ly dan­ger­ous work. In order to con­firm this man­age­ment direct­ed the work­er to attend an appoint­ment with a spe­cial­ist doc­tor who was specif­i­cal­ly trained as an occu­pa­tion­al physi­cian, and pos­sessed knowl­edge of min­ing oper­a­tions. The work­er failed to com­ply with the direc­tion to attend the appoint­ment on a num­ber of occa­sions, and felt that man­age­ment had no law­ful basis upon which to direct him to attend a med­ical appointment.

The Com­mis­sion in its deci­sion how­ev­er stat­ed that an employ­er has an implied oblig­a­tion to ensure a safe sys­tem of work and a duty of care to all those on their work­sites, specif­i­cal­ly in rela­tion to their employ­ees. In light of this oblig­a­tion, the employ­er’s con­cern regard­ing whether or not the work­er was fit for work was a rea­son­able concern.

Fur­ther, the employ­er was a coal mine oper­a­tor and there­fore also had a statu­to­ry oblig­a­tion to ensure the health and safe­ty of their employ­ees. Under the statu­to­ry oblig­a­tion the Com­mis­sion held that it was rea­son­able for man­age­ment to require the work­er to see a spe­cial­ist of their choos­ing in order to sat­is­fy com­pli­ance with their duties and oblig­a­tions owed to employees.

The deci­sion demon­strates that employ­ers do enjoy some rights in pro­tect­ing their busi­ness as they are able to direct an employ­ee to attend a med­ical assess­ment before return­ing to work. Impor­tant­ly, a refusal by the employ­ee to do so may be held to be unrea­son­able there­by enti­tling the employ­er to ter­mi­nate them.