Employer’s right to lawfully direct an employee to attend a medical assessment?

August 16, 2018 11:38 am

In this decision, the employer successfully defended a general protections claim where it dismissed an employee for refusing to attend medical examinations or assessments on 6 occasions to assess the employee’s fitness to work and assist in his return to work.

The case highlights the need for a comprehensive and well documented approach in ensuring that all decisions are scrutinised to ensure that they do not take into account unlawful considerations. The employer ensured that it remained in contact with the employee and carefully articulated its reasons for dismissal in the letter terminating his employment.

If this case was brought under the unfair dismissal provisions, it may have had a different outcome as the court would have had to consider whether the termination was harsh, unjust or unreasonable.

Facts

The Applicant claimed that he was dismissed because he suffered a disability and was therefore discriminated against, and because he exercised his workplace right to take periods of personal leave due to his disability. The Applicant was absent from work for extensive periods in 2012, 2013 and 2014. 

The Respondent required the Applicant to attend medical examinations or assessments on 6 occasions between 22 July 2014 and 27 November 2014. The Applicant did not attend any of those save for one where his attendance was late and the assessment could not proceed. The purpose of these assessments was to understand the Applicant’s medical condition, and to assist his return to work.

On 9 January 2015 the Respondent terminated the Applicant’s employment.

The Respondent argued that the dismissal was because the Applicant was unable to perform his duties and that the reasons for the Applicant’s termination were set out in a letter dated 9 January 2015. The Respondent contended that the letter in question, together with its annexures, contains the sole reasons for the Applicant’s termination. The letter stated that the employment was terminated on the ground of non-performance of duty as a consequence of the Applicant not attending a medical appointment scheduled for 27 November 2014. The letter acknowledged the various matters contended for by the Applicant and in particular that he could not attend the medical assessment based on medical advice, because he was on leave, and in any event because he was unaware of the same.

HELD:

It was unreasonable, in all the circumstances, for the Applicant to simply, and in effect, ‘shut down’ all communication between the Respondent and himself given the circumstances and the history of his relationship with the Respondent, and then to use his self-imposed ignorance not even as a shield but as a sword, in the present proceedings.

The letter of 9 January 2015 set out the basis for the decision to terminate the Applicant and was the culmination of earlier correspondence dated 12 December 2014 and 23 December 2014.

There were no other reasons for terminating the Applicant beyond those stated in the letter.

The Applicant did have a duty to communicate with the Respondent, which the Applicant failed to discharge during the Disability Period. It is a duty that the Applicant may delegate. The evidence before the Court satisfied it that the Applicant did, in fact, delegate this duty at other times. He could have delegated it during the Disability Period.

Adverse action was taken against the Applicant for the purposes of s342(1) of the FW Act in that he was dismissed. The Respondent, however, did not take adverse action either because of any workplace right exercised by the Applicant pursuant to s340(1) or because of the Applicant’s alleged disability. The Respondent dismissed the Applicant for the reasons, and only for the reasons, set out in the termination letter of 9 January 2015. The Respondent had rebutted the presumption set out in s.361 of the FWA and the Application was dismissed.

In relation to the Applicant’s claim that his dismissal was indirectly discriminatory because he was dismissed for failing to comply with a requirement (to attend his 6th assessment) with which he could not comply (because he could not communicate to receive it). The Applicant both knew of the assessment, and did not have a disability that precluded him from attending that assessment. “He was 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 who closes his eyes so that he cannot read written instructions.”

How does this affect employers?

  1. When dismissing an ill or injured employee, the decision maker must not take into account any unlawful considerations
    • Assessing whether an employee is fit to work after prolonged periods of absence due to illness or disability can expose an employer to potential claims in discrimination, breach of OHS obligations, adverse action, workers compensation, breach of contract and unfair dismissal.
    • Employers need to tread carefully and adopt a comprehensive and well documented approach in ensuring that all decisions are scrutinised to ensure that they do not take into account unlawful considerations. When dismissing an ill or injured employee, the decision maker should ensure that their reasons are clearly set out.
    • In this case, the employer’s letter evidenced a decision made on behalf of the Respondent and bound the Respondent. Moreover, based on the evidence before the Court, the factual matters asserted in the letter were true and accurate insofar as pertinent to the matters before the Court.
  2. An employer may have a right to direct an employee to attend a medical examination for the purpose of understanding the employee’s medical condition, and to assist with his/her return to work, provided the direction is lawful and reasonable in the circumstances. This, however, needs to be balanced with an employee’s right to refuse a medical examination.
    • This was considered in the unfair dismissal case in Grant v BHP Coal Pty Ltd [2017] FCAFC 42. The employee, a boilermaker whose duties included heavy manual labour, had been absent from work for 8 months and had undergone shoulder surgery. He provided his employer with a GP’s medical certificate which stated he was fit to return to work and his normal duties. This was supported by the employee’s orthopaedic surgeon.
      • The employer directed him to attend two appointments with an occupational physician to gain further information about his ability to return to work without risk of re-injury. The employee refused. The employee’s employment was terminated for serious misconduct for failing to comply with lawful and reasonable directions. The Full Court held that he was lawfully terminated as the certificates failed to satisfy the employer and the employer was entitled to direct the employee to attend the appointments with a designated specialist under the relevant OHS legislation.
    • The employer also notified the employee that a failure to attend the appointment would result in disciplinary action being taken against him.
    • An employer may lawfully dismiss an employee for failing to follow a lawful and reasonable direction to attend a medical assessment provided that the reasons for the decision do not include any proscribed reasons.
    • In this case, it was considered an unreasonable interpretation of letters from the Applicant’s doctors that they should be read as precluding medical assessments. Such an interpretation would result in the absurd outcome that an employee such as the Applicant can unilaterally arrogate to himself (using the agency of treating health professionals who are limited to the history given by the Applicant) the ability to decide whether and if so when, he can be independently medically assessed in relation to a disability which he claims is related to his workplace.
  3. An employer should maintain regular contact with an employee who is absent.  Similarly, an employee has an implied duty to communicate with his/her employer. It is important that the employer adopts a proactive approach and documents all communication with the employee.
    • An employee can delegate this duty to communicate to his/her doctor.

See LAVIANO  v  FAIR WORK OMBUDSMAN [2017] FCCA 197.

For further information, please contact Serena Billing on 0438197331.

 

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