Chris Oliver, Director

In today’s fast paced business environment, maintaining a high performing and stable team of employees is vital to the success of an organisation. This can be impacted if employees are unfortunate enough to suffer injuries or illness. Uncertainty can further arise for employers once an employee’s extended absence begins to take its toll on the day to day operation of the business and the interim arrangements that were put in place just don’t have the capacity for the organisation to respond effciently and effectively to market demands. Commonly, employers are hesitant to take action for fear of being accused of invading the employee’s privacy or interfering in the employee’s exercise of a workplace right. Recent case law has offered some new certainty and peace of mind for employers by declaring an implied contractual right to request further medical evidence.

Legal Obligations

While it may be frustrating, at times a combination of legal obligations and protections may prevent you from simply putting the needs of the organisation first.

Regardless of how an extended absence may be impacting upon your ability to operate your business, employers must remain mindful that it is unlawful to treat an employee less favourably because of their illness, injury or disability and it is also unlawful to dismiss an employee due to illness or injury if they have been absent for three months or less (or during a period of paid personal leave).

Erring on the side of caution may save you from being exposed to various kinds of legal claims such as unfair dismissal, adverse action, discrimination or even bullying. With this in mind, you may be able to reduce this risk by:

• ensuring contact between the organisation and the employee is appropriate and limited to that which is necessary, so that they have the opportunity to fully recuperate;
• ensuring that conversations around absences focus on notice requirements and ways in which the employer can support the employee’s return to work (rather than reprimanding or blaming them for the effects of their absence); and
• following applicable consultation procedures if any changes are likely to affect the employee’s role during their absence

Employer’s Rights

Despite the risks mentioned, employers do have rights when it comes managing absent employees. This year the Federal Court of Australia confirmed that employers have an implied contractual right to request further information about an employee’s condition in certain circumstances. Employers are entitled to this information if it is crucial for assessing the work health and safety risks associated with the injured/ ill employee returning to work. Further, the Court has suggested that if an employee refuses to comply with a reasonable request or direction to supply further information, it may justify a decision to terminate employment.

Can I request specific medical information even if the employee has tendered a medical certificate?

Yes, you can.

In Australian and International Pilots Association v Qantas Airways Ltd [2014] FCA (“Qantas case”) an employee unsuccessfully claimed adverse action after the pilot refused to comply with Qantas’ requests for a medical report and attendance at a meeting to discuss the report. This was despite the pilot tendering a medical certificate saying that he was suffering from clinical depression. Once it became apparent that the nature and duration of the pilot’s absence was indefinite and uncertain, Qantas sent four letters (over a reasonable period of time) to the pilot requesting information relevant to the assessment of the pilot’s capacity to return to work and the timeframe in which that might occur. The pilot, who at the time was represented by the AIPA, did not comply with Qantas’ repeated requests. The letters stated that disciplinary action would be taken if he failed to comply with the requests.

The case was decided in Qantas’ favour and proceedings dismissed. The court acknowledged that the information provided by the pilot to date had been insufficient for the purposes of Qantas planning for:

• their business needs;
• their compliance with Work Health and Safety obligations;
• making necessary adjustments to the employee’s role; and
• the re-entry or departure of the Pilot from the workplace, and on this basis, it was reasonable for Qantas to request further medical information.

What if the employee refuses to cooperate and simply wants to return to work?

If you have a reasonable basis for requesting further medical evidence (such as one of the purposes outlined in the Qantas case) you may be able to direct an employee to comply with your request. If they fail to cooperate, then disciplinary action may be taken (up to and including termination of employment).

This was the approach taken by BHP in the case of Grant v BHP Coal Pty Ltd [2014] FWC 1712 (“BHP case”) which concerned an employee involved in heavy manual labour. After injuring his shoulder on multiple occasions at work, the employee took an extended period of personal leave for eight months to undergo surgery. Some five months after having surgery, the employee advised his supervisor that he would be returning to work, and that he had medical clearance to do so. He presented two medical certificates, one from his GP and another from his surgeon, however neither of them disclosed the nature of his injury or set out any rehabilitation guidelines.

Concerned that they may be in breach of mining regulations that require BHP to take all necessary steps to prevent risks, BHP directed the employee to attend a “fit for work assessment” with an occupational physician to assess his capacity to return to regular duties. The employee refused to attend on four separate occasions and was subsequently subject to disciplinary action including suspension. BHP eventually dismissed the employee on the basis that he had failed to attend the assessments and that during a disciplinary meeting, he was non compliant in refusing to answer questions and conducting himself in a disrespectful manner. Following the termination, the employee filed an unfair dismissal claim with the Fair Work Commission.

The dismissal was upheld on the basis that the direction to attend an assessment was a lawful and reasonable request related to the employment and, as such, the employee’s refusal to comply constituted a breach of an implied term of his contract to comply with his employer’s directions.

Employees Returning to Work

When an employee returns to work after an extended period of leave, the employer must have regard to work health and safety legislation and consider whether the duties of the employee should be restricted or modified so as not to exacerbate the injury or condition of the employee’s health. This applies regardless of whether the employee’s health issues arose through a connection to their employment or not. Furthermore, the returning employee must not be treated any less favourably than their co-workers because of their absence, illness or injury.

“Erring on the side of caution may save you from being exposed to various kinds of legal claims such as unfair dismissal, adverse action, discrimination or even bullying.”

Precautionary steps to manage absences

The worst thing an employer can do when faced with the uncertainty of ongoing absence is nothing. It is better to act early and set clear and reasonable expectations for employees that you will take an interest in their health and that the continued presentation of non-specific medical certificates may not suffice if their absence becomes indefinite.

This expectation can be built into your leave policies by stating that employees may be directed to comply with requests for further information in the event of extended or indefinite absences.

The inclusion of a “fitness for duty” clause in employment contracts requiring the employee to partake in medical examinations at the employer’s direction can also assist if faced with circumstances similar to those in the BHP case.