06 Apr March Newsletter: Fair Work Commission Provides Guidance on Reasonableness Relating to Medical Examinations

Fair Work Commission Provides Guidance on Reasonableness Relating to Medical Examinations

A recent decision by the Fair Work Commission has clarified when it may be reasonable for an employer to direct an employee to attend a medical examination.

In the case before the Fair Work Commission, an employee had taken one day of personal leave and was directed to not return to the workplace.  He was then directed to attend a medical examination by a practitioner nominated by his employer.  The employer foreshadowed that it had concerns about the employee’s welfare due to other issues that had occurred in the workplace.  The employee refused to attend the medical examination and his employment was ultimately terminated.

The Fair Work Commission accepted that an employer has a right (depending on the circumstances) to “require a medical examination where the employer has concerns that an employee cannot perform the inherent requirements of the job”.  In questioning whether it was reasonable to direct the employee to attend a medical examination prior to returning to work, the Fair Work Commission determined that the following matters need to be considered:

1. Was there a genuine indication of the need for the examination such as prolonged absences from work or absences without explanation or evidence of an illness which related to the capacity to perform the inherent requirements of the job?

2. Had the employee provided adequate medical information which explained absences and demonstrated fitness to perform duties?

3. Is the industry or workplace particularly dangerous or risky?

4. Were there legitimate concerns that the employee’s illness would impact on others in the workplace?
5. Did the employee agree to the assessment by the practitioner selected by the employer?
6. Was the employee advised of the details of the conduct which led to the concerns that he was not fit for duty?

7. Was the medical practitioner advised of the issues of concern and were those matters focused on the inherent requirements of the job? What information was proposed to be given to the medical practitioner about the actual job requirement?

8. Was the employee advised of the matters to be put before the medical practitioner for his assessment?
9. Was the medical assessment truly aimed at determining, independently, whether the employee was fit for work?

The Fair Work Commission answered each of the questions set out above, finding overall that it was not reasonable to have directed the employee to attend a medical examination.  The Fair Work Commission then proceeded to determine that there was no valid reason for dismissal either on this basis, or on the other bases put forward by the employer.  The employee was awarded $43,906.72 (less appropriate taxation) (equivalent to the compensation cap applicable to the employee) in compensation.

This decision provides new and relevant guidance about what to consider in determining whether it is reasonable to direct an employee to attend a medical examination.  You as an employer, should take these matters into account when deciding whether to direct an employee to attend a medical examination or whether to terminate an employee’s employment when they fail to follow such a direction, as termination on the basis of an unreasonable direction may not be viewed favourably by the Fair Work Commission (as occurred in this case).  For further information, please contact us.

The content of this article is intended to provide a general guide to the subject matter.  Specialist advice should be sought about your specific circumstances.