Employers are often faced with a situation where they require an employee to be independently medically examined because of concerns about their ability to safely perform their role. If an employee refuses to attend such an appointment, are they liable to be dismissed? The answer to that question is (generally) yes, but it will depend upon the facts and circumstances. In Davies v CALHN [2025] SAET 20, the South Australian Employment Tribunal dismissed an application for unfair dismissal after an employee failed to attend such a medical examination.
Facts
The applicant employee had worked for 30 years for the respondent employer as a registered psychiatric nurse. He was dismissed for serious misconduct by virtue of an unreasonable failure to attend an independent medical examination.
The examination was requested following a series of emails sent by the applicant to the respondent which included comments about:
- serious personal symptoms
- graphic content of nightmares
- indirect references to WHS and disgruntled employees, and
- personal information about a HR officer.
The respondent asked the applicant to provide his consent for his treating doctor to tell them about his mental health and fitness for work. When the applicant declined to provide that consent, it a required independent medical opinion (for which the applicant was provided with a choice of three psychiatrists).
Decision
The Tribunal found that the applicant's emails and his conduct at a meeting, reasonably gave rise to serious concerns about the applicant's mental health and fitness to return to work. Further, that the respondent had an obligation and duty to investigate that issue before returning the applicant to duties.
The Tribunal observed that whilst the decision was couched in the language of misconduct, the real issue for determination was one of the reasonableness of the request for the medical opinion about the applicant's mental health, capacity and fitness for work.
The Tribunal found:
- the applicant elevated his own grievances about not being returned to work over the respondent's right and obligation to investigate his own apparent poor mental health and unfitness for work, and
- the applicant's non-attendance at the medical examination in the context of not providing information from his treating doctor and with no plan to provide medical information, was uncooperative and unreasonable - it was deliberate disobedience of a serious directive, with the awareness that disobedience could lead to dismissal.
Accordingly, the Tribunal found the applicant unreasonably failed to attend the medical examination and thereby engaged in deliberate serious misconduct, which was a valid reason for the dismissal.
Other cases
There are other authorities for the principle that failure to attend an independent medical examination, where an employer has legitimate concerns about the employee's capacity to perform their role can give rise to grounds to terminate the employment contract - see Zokaei Fard v Royal Melbourne Institute of Technology (RMIT University) (2022) FWC 1375.
In Blackadder v Ramsey Butchering Services Pty Ltd (2002) 118 FCR 395, Madgwick J said, after highlighting the onerous nature of an employer's obligations under work health and safety laws:
"It is, in my opinion, essential for compliance with the above duties, that an employer be able, where necessary, to require an employee to furnish particulars and/ or medical evidence affirming the employee's continuing fitness to undertake duties. Likewise, an employer should, where there is a genuine indication of a need for it, also be able to require an employee, on reasonable terms, to attend a medical examination to confirm his or her fitness."
Impact
The case illustrates that the weighty obligations employers have under work health and safety laws can, in appropriate circumstances, justify an employer to require an employee to attend an independent medical examination to confirm their fitness for work. If the employee refuses to comply with the direction, the employer may be entitled to dismiss the employee, subject to the facts and circumstances.
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.
