Australia: Can an employer require an employee to undertake a medical examination?

Employers are regularly confronted with situations in which they need to obtain further medical information about injured or unwell employees who for various reasons, fail to cooperate with employer requests for such information and/or to attend an employer nominated doctor for a medical examination.

There are a number of Court decisions which have looked at the competing interests of an employee's right to privacy and an employer's responsibility to ensure they operate a safe workplace by, amongst other things, sufficiently understanding their employees' health status to enable appropriate management decisions to be made concerning staff safety.

Two decisions in March 2017 can now be added to the list of authorities which support an employer in its decisions to seek further medical information and where an employee unreasonably fails to provide it, to take disciplinary action including termination.

This article looks at these two decisions: Grant v BHP Coal Pty Ltd [2017] FCAFC 42 (10 March 2017) and Laviano v Fair Work Ombudsman [2017] FCCA 197 (15 March 2017).

GRANT V BHP COAL PTY LTD

In Grant v BHP Coal the employee Mr Grant, attempted to return to work in April of 2013 after a period off work of approximately 8 months during which he had had little contact with his employer. In support of his attempt to return to work he produced a number of medical certificates which were drafted in the simplest terms stating he was receiving treatment for a "medical condition". His last medical certificate stated that he was "fit to return to his normal duties as and from 1 April 2013".

Mr Grant's employer was not satisfied with this certificate and Mr Grant was requested to attend an appointment with a medical practitioner nominated by his employer, so that it could understand whether there were any limitations with respect to his fitness for work. The letter which Mr Grant received from his supervisors stated: -

"As discussed I require you to attend a medical examination so that I can understand any limitation with respect to your fitness for work, and how this impacts on your ability to perform your substantive position as Mine Employee – Boilermaker at Peak Downs Mine...

I would like to take this opportunity to reinforce that we remain committed and focused on ensuring your safety at work. BMA has a duty of care to provide all employees with a safe working environment and given your injury, we need to be satisfied you can safely perform the inherent requirements of your role."

Mr Grant failed to attend (on 2 occasions) an appointment made for him with his employer's nominated doctor. Due to that failure, he was suspended from his employment in accordance with the applicable Workplace Enterprise Agreement. Mr Grant was subsequently terminated on the basis he had refused to follow a lawful and reasonable direction of his employer.

The decision to terminate was also referenced to other matters such as Mr Grant's electronic recording of conversations without consent, and refusal to cooperate and participate in the investigation process into why he refused to attend the appointments. In any event Mr Grant sued for unfair dismissal.

The matter was initially heard before the Fair Work Commission. It then went on appeal to the Full Bench of the Fair Work Commission and from there to the Federal Court of Australia. In the Federal Court Mr Grant sought to set aside the Full Bench decision which had affirmed the earlier decision of the Commission rejecting Mr Grant's claim for unfair dismissal.

The key issue the Federal Court had to address was whether the employer was entitled to require Mr Grant to submit to a medical examination because it had a statutory responsibility under Section 39 of the Coal Mining Safety and Health Act 1999 (Qld) (the Mining Act) which imposes a duty upon coal mine workers to ensure that no one is exposed to unacceptable levels of risk.

The Federal Court agreed with the position taken by the employer that Section 39(1)(c) of the Mining Act supported the entitlement of the employer to direct Mr Grant to undergo medical examination before allowing him to work. Section 39(1)(c) of the Mining Act requires the taking of any reasonable and necessary course of action to ensure anyone is not exposed to an unacceptable level of risk.

The Federal Court in Grant considered the issue of applicability of the Regulation under the Coal Act and whether an employer's ability to require a medical examination could only be valid if it conformed with the Regulation under the Act. The Federal Court stated that in its view such an approach would be "an inflexible approach, and indeed contrary to common sense, to find that the statutory regime permits no steps to be taken to ensure health and safety of persons in potentially dangerous mining environment otherwise than in accordance with any system developed pursuant to the Coal Regulation".

The decision of the Federal Court was appealed to the Full Bench of the Federal Court where it was unanimously dismissed. The Full Bench was satisfied that section 39 (1) (c) of the Mining Act (and section 2 (d)) did curtail the right of an individual to personal liberty to the extent that coal mine workers may be required to attend medical examinations if the circumstances contemplated by those provisions were met. That is to say it rejected the employee's argument that because these provisions did not declare in express terms that a coal mine worker could be required to undergo a medical examination, the legislation should be treated in such a way as to limit the scope of the legislation to require an employee to undertake a medical examination.

LAVIANO V FAIR WORK OMBUDSMAN

The Federal Circuit Court was required to consider whether the applicant had been dismissed because he suffered a disability, was discriminated against on those grounds and because he had exercised a workplace right to take personal leave due to his disability.

In 2004 the applicant who was an employee of the Fair Work Ombudsman, was absent from work for a number of periods due to a psychological illness which was found by the Court either to be major depressive disorder or adjustment disorder comprising elements of depression and anxiety.

The applicant's record of attending medical examinations organised by his employer, was poor. In fact the Court found that the applicant had failed to attend medical examinations or assessments on six occasions between July and November 2014 save for one, where he was late and the assessment could not proceed.

It was the applicant's failure to communicate with his employer which ultimately led to his termination. In particular there was an assessment scheduled for 27 November 2014 which did not proceed because the applicant claimed he was not aware of it, as he had not opened correspondence and emails from his employer since the middle of October until his return to work on 23 December 2014. He had taken this course of action on medical advice.

The Court did not accept the applicant's contention that he was not checking his emails. It determined also that before 15 December 2014 the employer was not aware that the applicant had received advice from his psychologist not to open any communications from the employer.

Of significance, was the Court's finding that the applicant had taken no steps directly or through a third party between the middle of October and 15 December 2014, to let his employer know that he would not be communicating with them or why. Whilst the applicant's GP sometime after 29 October 2014 had told the applicant's employer that the applicant was unable to attend any work or compensation matters, this could not have reasonably led the employer (prior to 15 December 2014) to conclude that the applicant was incommunicado and that the employer could not arrange for the applicant to be medically assessed.

The Court found the applicant's behaviour unreasonable and to quote his honour Judge Altobelli:
"The Court finds that it was unreasonable in all the circumstances for the applicant to simply and in effect, 'shut down' all communication between Respondent and himself given the circumstances and history of his relationship with the Respondent and then to use his self-imposed ignorance not even as a shield but as sword in the present proceedings."

In conclusion, the Court found that on balance the applicant would have been aware of the medical examination on 27 November 2014 but chose not to attend. The employer had chosen to dismiss the applicant for his non-attendance as stated in the letter of termination and adverse action was not taken because the applicant had exercised a workplace right to take leave.

The court also rejected the argument that dismissal was indirectly discriminatory because the applicant had failed to comply with the requirement to attend a medical assessment with which he could not comply (due to his condition). The Court found that the applicant knew of the assessment and did not have a disability that precluded him from attending. In the Court's words: -

"The applicant is no more a victim of indirect discrimination than is a man who puts his hands over his ears so he cannot hear oral instructions, or a man that closes his eyes so he cannot read written instructions".

CONCLUSION

Whilst neither of the above decisions represent any significant development in the law, they are useful precedents that serve to highlight the pre-eminence of an employer's entitlement to require employees to undergo a medical examination and assessment where reasonably necessary to manage the work, health and safety aspects of the workforce.

The decision in Laviano highlights that an employee has an obligation to communicate adequately with their employer even where they are ill. This can be achieved by the employee authorising a third party such as a medical practitioner to inform their employer of their medical condition and any medical advice given to the employee not to communicate with their employer until their condition improves. In Laviano, the applicant's failure to ensure that this occurred, played a significant role in the decision and ability of the employer to terminate his employment.

For further information please contact:

Richard Ottley, Partner
Email: +61 2 9233 5544
Phone: rbo@swaab.com.au

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.

Authors
 
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”

Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
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).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.