Direction to Attend Medical Assessment: When & How?

In a recent decision of the Federal Court of Australia (‘FCA’) [1] the Full Bench of the FCA held that BHP Coal (‘the Defendant’) was entitled to dismiss a boilermaker (‘the Employee’) who refused to attend a company ordered medical appointment, which was intended to assess his fitness to return to work. In 2011 the Employee suffered a shoulder injury while at work and took extended sick leave for the purpose of undergoing surgery and recovery. The Employee’s doctors cleared him as “it to return to normal duties however, BHP directed the Employee to see an additional specialist before returning to work. The Employee refused to attend and BHP subsequently dismissed him for failure to comply with a reasonable and lawful direction.

In reaching its decision, the FCA considered section 39 of the Coal Mining Safety and Health Act 1999 (QLD) (‘the CMSH Act’) which imposes an obligation on coal mine workers to comply with health and safety procedures intended to ensure that individuals and other miners are “not exposed to unacceptable levels of risk”. The FCA accepted that the Employee’s superintendent ordered the additional medical check in response to identifying a potential risk arising from the Employee’s return to work. While the FCA accepted the Employee’s contention that the legislation acted to “curtail the right to personal liberty”, it held that the Act directly authorised BHP to take “any reasonable and necessary course of action” to ensure the safety of its workers.

Whilst this decision applies specifically to the employment relationships affected by the CMSH Act, employers often grapple with the issue of when they can reasonably direct employees to attend a medical assessment.

Employers have a strict common law duty to ensure the health and safety of their employees at work and must take reasonable care to protect employees from foreseeable injury arising during their employment. Similar obligations exist under work health and safety legislation, including the Work Health and Safety Act 2011 (NSW), which imposes a duty of care on employers to employees in the “provision and maintenance of a work environment without risks to health and safety”. Accordingly, if an employer has a legitimate and genuine concern that an employee is unfit to perform the necessary inherent requirements of their job, potentially placing themselves or others as risk, an employer may be able to require an employee to attend a medical assessment.

This was demonstrated in Burns v Sacred Heart Mission Inc [2014] FWC 3188 in which the Fair Work Commission (‘FWC’) denied an unfair dismissal claim, and held that an employer was “entitled to direct an employee to obtain a medical report”, provided the direction was reasonable and that an entitlement to do so could be derived from either an implied term in the employment contract that each party will do all that is necessary to enable the other to have the benefit of the contract, or as a result of a legislative work health and safety obligation.

In order to ensure a direction to attend a medical appointment is lawful and reasonable, and that there is a genuine need for the same, employers should consider:

• Whether there is a genuine indication that examination is necessary, for example, prolonged absences from work or absences without explanation or evidence of an illness which relates to the capacity to perform the inherent requirements of the job?

• Has sufficient medical information has been provided from a medical practitioner to the employer which explains absences and demonstrates fitness to perform duties?

• Whether the relevant work/workplace is inherently dangerous?

• Does the employee’s illness/injury legitimately impact (or risk impacting) others in the workplace?

• Has the employee agreed to an assessment to be conducted by a practitioner selected by the employer?

• Is the medical assessment truly aimed at independently determining whether the employee is fit for work? [2]

The above should be carefully considered before directing an employee to attend a medical assessment to mitigate the exposure to an unfair dismissal, discrimination or adverse action claim. It is important that employers conduct this process in a reasonable, transparent and fair manner.

If you have any questions about the “when” and “how” of directing employees to attend a medical assessment, please do not hesitate to contact Nick Stevens, Megan Cant or Jane Murray on (02) 9222 1691.