Lawful and reasonable direction
Approach to seeking medical information
Case study – exercising caution in respect of the temporary absence provisions
This article provides an overview of the circumstances in which an employer can ask an employee to provide medical information or attend an independent medical examination (IME).
Lawful and reasonable directions
First, employers must consider whether their request to provide medical information or attend an IME would be a lawful and reasonable direction.
For a direction to be lawful and reasonable, an employer must establish a genuine need for the information. This may arise, for example, where:
- the employer has reasonable concerns for the employee's health and safety or the safety of others;(1)
- the employer is required to affirm an employee's fitness to work after an extended absence;(2) or
- there is another need for the information (eg, because of the general nature of medical reports previously provided by an employee).(3)
The direction must also be reasonable, meaning that the information should be directed to the inherent requirements of an employee's job(4) and the assessment should be held at a reasonable time and location, having regard to the employee's circumstances and nature of the medical condition.(5)
Approach to seeking medical information
What does this mean from a business perspective and what steps should employers take in such matters?
In most cases, the following steps are essential in the lead-up to directing an employee to provide medical information or attend an IME:
- determining the inherent requirements – this first step is often crucial to show that there is a genuine need for the information and a reasonable basis for the direction. The inherent requirements of a job are the essential activities that must be carried out to fulfil the purpose of an employee's position.(6) The job description for the role is often a good place to start in an inherent requirements assessment, but the task does not stop there;(7)
- preparing the request for information – the employer's request for information must be carefully considered by reference to the inherent requirements and any surrounding circumstances that are relevant to the doctor's consideration; and
- discussing the process and obtaining consent – the final step is to ideally have a discussion with the employee in relation to the proposed course of action (subject to their medical condition and ability to attend for a meeting or have a discussion by phone). In some cases, an employee may agree to the next steps and sign a consent form, in which case the employer will be able to send the request for information to the doctor. In other matters, the meeting may be more contentious and require a formal direction to provide information in writing.
Case study – exercising caution in respect of the temporary absence provisions
The recent decision of Rezaeifard v Green Leaves ELD Pty Ltd(8) is a reminder for all employers not to overlook the temporary absence provisions under section 352 of the Fair Work Act 2009 (Commonwealth) (Fair Work (FW) Act) and regulation 3.01 of the Fair Work Regulations 2009 (Commonwealth) (FW Regulations) in managing employee absences and IME requests.
Under the FW Act and the FW Regulations, an employer must not dismiss an employee because the employee is temporarily absent from work due to an illness or injury, where the absence is supported by a medical certificate or statutory declaration.
The protection to employees under section 352 of the FW Act arises where:
- the employee's absence is for a duration of less than three months; or
- the total absences of the employee, within a 12-month period, are for less than three months; and
- the employee is on paid personal/carer's leave for the duration of the absence (excluding any period during which the employee is absent from work while receiving workers compensation).
In other words, the protection under section 352 of the FW Act ceases after an absence extends for more than three months and the employee has exhausted their paid personal/carer's leave entitlements (although other protections at law continue to apply, so any dismissal should be considered carefully and with caution).
In the recent case of the Fair Work Commission (FWC), the educator had presented a medical certificate from her doctor on 9 September 2020, providing that she had "chronic lower back pain which has got worse in the past year and would benefit from working with children at the age group of 3-5 year old to prevent frequent exacerbations". The educator exhausted her paid sick leave entitlements shortly after this medical certificate was received by the employer.
The employer, on receiving the medical information from the educator, directed her to undergo an IME. The findings of the IME were that the educator was unable to work safely with children due to capacity (lifting and carrying) restrictions.
The employer consulted with the educator and considered whether it was possible to provide modified duties (which it was not). The educator was dismissed on 18 September 2020, on the basis that she was unable to safely perform the inherent requirements of her position.
The FWC noted it was reasonable for the employer to request that the educator attend the IME, with Commissioner Hunt finding: "it could not simply ignore the information it had before it and allow Rezaeifard to only work in the 3-5 year room. It would be unsafe to do so".
However, and critically, the FWC further found that for the employer to have proper regard for the requirements of the FW Act, it would have had to allow the educator to go on unpaid personal leave after her sick leave entitlements were exhausted. It did not, and instead moved to dismissal. The FWC found this resulted in the educator's dismissal being unfair.
The educator was awarded A$5,840 and superannuation in compensation. In awarding compensation, the FWC issued an important reminder to employers that:
Employees should not lose their job if they have to take six weeks off work to mend a broken bone. Not all employees will have a balance of six weeks of paid personal leave to cover such a scenario. Nor should employees lose their job if they are having surgery such as a hysterectomy, or retina attachment, or are recovering from hepatitis. A three month protection is in place for very good reason.
For further information on this topic please contact Alina Kaye at The Workplace Employment Lawyers by telephone (+61 2 8999 3300) or email ([email protected]). The Workplace Employment Lawyers website can be accessed at theworkplace.com.au.
Endnotes
(1) For example, in Zadeh v Woolworths Ltd [2015] FWC 1791 (a request to seek a second medical opinion due to safety concerns arising from a series of "worrying complaints" made by an employee to management) and in Bletas v The Star Entertainment Qld Limited [2019] FWC 2792 (a direction to attend IME following a number of "concerning behaviours" displayed by an employee).
(2) For example, in Columbine v The GEO Group Australia Pty Ltd [2014] FWC 6604 (a request for information made after a marked change in a correctional officer's fitness for work following hip and shoulder injuries) and in Re Krcho [2019] FWC 5278 (a direction to attend an IME where the employee claimed he was fit for work contrary to a medical opinion).
(3) For example, in Ingall v Virgin Australia Airlines Pty Ltd [2019] FWC 4947 (a request for information following an extended absence during which the employee failed to provide information about the nature of his medical condition) and in Grant v BHP Coal Pty Ltd [2014] FWCFB 3027 and Grant v BHP Coal Pty Ltd [2017] FCAFC 42 (a direction to attend a medical appointment for a functional assessment as employer not satisfied of fitness based on generalised medical reports and lengthy absence from work).
(4) For example, in Transport Workers' Union of Australia v Cement Australia Pty Ltd [2015] FWC 158 (a direction to provide medical information unreasonable where based on general injury statistics rather than specific factual concerns associated with individual employees being able to perform the inherent requirements of their jobs).
(5) However, a direction will not be unreasonable just because it is a non-preferred option of the employee – for example, in Ingall v Virgin Australia Airlines Pty Ltd at [99].
(6) For example, in J Boag and Son Brewing Pty Ltd v Button [2010] FWAFB 4022 and the authorities that are referred to in that decision.
(7) For example, in Martin v TNT Australia Pty Ltd [2017] FWC 440 (upheld on appeal), in which the Fair Work Commission considered documentary evidence, including the employer's policies and procedures, as well as oral evidence provided by various managers in the proceedings.
(8) [2021] FWC 5905.