Fred hasn't being coming to work. His medical certificate
states that he is "unfit". But what does this mean? How
can you accommodate this in your workplace? Will it be safe for him
to return to his normal duties when he returns? These are dilemmas
facing many employers. In the recent decision Australian &
International Pilots' Association v Qantas Airways, the
Federal Court provides answers to some of these questions.
Mr Kiernan, a pilot employed by Qantas, provided medical
certificates stating that he was "unfit for normal work"
for a total period of approximately seven months. Qantas requested
that Mr Kiernan provide a medical report setting out his diagnosis,
prognosis, capacity to return to pre-injury duties and the
anticipated timeframe. This request was made on the basis that
Qantas needed to know when Mr Kiernan would be able to safely
return to work. The information was also necessary for work
rosters, which were prepared several months in advance.
Mr Kiernan's union disputed Qantas' entitlement to such
a report. However, Qantas persisted with its request, threatening
disciplinary action if the report was not provided. In response,
the union issued legal proceedings. It alleged that by threatening
to discipline Mr Kiernan after he had provided a medical
certificate stating he was unfit for work, Qantas had taken adverse
action against Mr Kiernan.
The Court dismissed the proceedings. It held that the provisions
in the Fair Work Act 2009 and any applicable enterprise
agreement requiring an employee to provide a medical certificate or
other evidence of being unfit for duty, were not the only sources
of the employer's right to require medical evidence from an
The Court stated that employers also had an implied right to
require employees to provide sufficiently detailed medical
information to enable employers to comply with their obligations
under work health and safety legislation. These obligations
included the need to provide a safe workplace and safe systems of
Additionally, the Court found that the employer's right to
medical information was necessary to enable them to make
operational arrangements to deal with employee absences. In the
Court's view, basic medical certificates failed to assist
employers to plan for absences or rehabilitation to the workforce.
Consequently, the Court stated that it was unrealistic for
employers to have no right to obtain information about the
diagnosis and prognosis of employees on extended sick leave.
Exercising your right to know
Step 1: Ensure that it is reasonable and necessary to request
further medical information from an employee. A request will
generally be reasonable and necessary where:
an employee is taking a significant amount of sick leave
a worker has an injury that affects their ability to carry out
their duties in a safe manner, and/or
the further information is necessary to enable you to address
your operational requirements or comply with your obligations under
the work health and safety legislation.
Step 2: Review your enterprise agreement or employment contracts
to ensure that there is no limitation as to the type of medical
information that you can request from your employees.
Step 3: Limit your request for information to what is necessary
to assist you to address the matters in step 1. This is likely to
include information that will enable you to understand the
employee's condition, its cause, the prognosis and their
ability to return to pre-injury duties. It may also include
requiring the employee to attend a medical examination.
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
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).