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Legal issues surrounding employee medical assessments

This help sheet has been prepared by Moores, not-for-profit legal advisers.

Takeaway points

The management of a work-related injury usually involves a variety of legal issues. Employers must be mindful of their intersecting and overlapping duties and obligations under multiple pieces of legislation, including workers' compensation laws, work health and safety laws, equal opportunity and anti-discrimination laws, and of course the Fair Work Act (in relation to general protections and unfair dismissal claims).

As an employer, you have the right to direct an employee to obtain an independent medical assessment if you believe you do not have enough information about the employee's capacity and illness.

You should check whether the applicable award or enterprise agreement or the contract of employment contains any procedures regarding medical certificates and evidence, and ensure compliance.

Case study

The interaction between an employee's rights and obligations under their contract, award or enterprise agreement, and the employer's duty to provide a safe workplace under work health and safety laws, is complex. In a 2014 case involving BHP and an injured worker (Grant v BHP Coal Pty Ltd [2014] FWCFB 3027), the Full Bench of the Fair Work Commission considered this interaction.

Mr Grant was a boilermaker at BHP Peak Downs coal mine. He injured his shoulder during the normal course of his duties. In the following months, he re-injured his shoulder on several occasions both at and outside work and took extended sick leave. After an eight-month absence from work, he provided a medical certificate stating that he was fit to return to his pre-injury duties.

Relying on its obligations under the Coal Mining Safety and Health Act 1999 (Qld) (the CMSH Act), the employer:

  • required the employee to attend an appointment with its nominated medical specialist (who was trained as an occupational physician and had specific knowledge of the employer's mine operations) for a functional assessment test before being assigned duties;
  • advised Mr Grant that he was not required to attend work; and
  • paid him in full for the duration of the process.

Mr Grant failed to attend that appointment and the rescheduled appointment.

The employer required Mr Grant to attend a meeting for the purpose of investigating his conduct and suspended him on full pay. At the meeting, Mr Grant was asked to explain why he had failed to attend the medical appointment. Mr Grant did not provide an explanation.

The employer then issued Mr Grant with a show cause letter, alleging that Mr Grant had failed to follow lawful and reasonable directions to attend a medical appointment and that this had undermined the trust and confidence between the employer and the employee. Mr Grant responded to the letter by claiming that the direction was neither lawful nor reasonable.

At a subsequent meeting, the employer terminated Mr Grant's employment and provided him with a termination letter setting out the reasons for his dismissal.

Unfair dismissal claim

Mr Grant brought an unfair dismissal claim, alleging that the employer's decision to terminate him was harsh, unjust or unreasonable in all of the circumstances. When determining such a claim under the Fair Work Act 2009 (Cth), the Fair Work Commission must consider a number of factors, including whether there was a valid reason for termination of employment.

Importantly, in common law there is an implied term (meaning it exists in all employment contracts) that an employee must comply with lawful and reasonable directions of the employer. An employee's failure to comply with such a direction may provide a valid reason for termination of employment.

Mr Grant argued that he had complied with the requirement under the enterprise agreement to provide a medical clearance from his doctor before returning to work, and that the employer's requirement that he attend a medical assessment was unlawful and unreasonable.

However, the Commissioner held that the direction to attend a medical assessment was both lawful and reasonable because:

  • the employer had express statutory obligations to ensure the health and safety of its workers under the CMSH Act;
  • the work was physically demanding and there was a real risk of injury if employees were not fit to perform their duties; and
  • the medical certificate provided by the employee lacked detail.

The Commissioner found that the employee's failure to follow the lawful and reasonable directions (to attend a medical appointment) and his unreasonable refusal to participate in the disciplinary investigation formed a valid reason for dismissal.

Having determined that the employer's termination of Mr Grant's employment was not harsh, unjust or unreasonable in all of the circumstances, the Commissioner dismissed the application.

Decision on appeal

On appeal, the Full Bench of the Fair Work Commission upheld the findings of Commissioner Spencer's decision at first instance and the matter was again dismissed.

You have received a medical certificate from an employee - what next?

Check the information provided on the medical certificate. If it does not provide details as to the reason for the leave and you are concerned about the employee's health and wellbeing, then organise a private meeting. Ask the employee if there is anything you should know about pertaining to their health, and make general enquiries about their welfare.

If the medical certificate specifies that the employee should be working reduced duties (i.e. limited hours of work) but doesn't provide specifics, you have the right to talk with the employee and find out more information about their capacity.

If you need more information from a medical expert then you can direct the employee to attend a further medical appointment to obtain additional information.

A return-to-work coordinator can be very useful to help your employees return to work after an injury or illness. Having a plan in place can minimise the risk and liability for all employees and the employer.

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