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.
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
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.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).