Cole v PQ Australia Pty Ltd  FWC 1166
The Fair Work Commission opened 2016 with a clearly reasoned dissection of when an employer may reasonably direct an employee to attend an independent medical examination (IME).
Mr Cole had been employed as a packer for PQ Australia for four years when PQ Australia began to have concerns that he was not working effectively with his co-workers and ‘not coping well at work’. As a result of these concerns, PQ Australia directed Mr Cole to attend an IME. Mr Cole refused to attend and his employment was terminated for grounds including that he failed to follow a lawful and reasonable direction.
The Commission accepted that an employer may have the right, depending on the circumstances, to require a medical examination where there are concerns that an employee cannot perform the inherent requirements of the job.
However, in this case, the Commission found that it was not reasonable to direct Mr Cole to attend an IME. In particular, there was no genuine need for an IME because there were no frequent or prolonged absences from work. Although some unexplained absences had occurred, there was no evidence of any link between these absences and any illness which might affect Mr Cole’s capacity to perform his job.
The Commission was critical of PQ Australia’s handling of the matter, in particular its failure to respond to Mr Cole’s bullying complaint which, the Commission found, explained some of Mr Cole’s absences and issues with his co-workers. PQ Australia had failed to conduct any investigation into Mr Cole’s bullying complaint and did not put in place reasonable measures to protect Mr Cole from harm.
The Commission helpfully provided guidance as to when it is reasonable to require an IME before an employee can return to work. Questions to be answered when facing this issue include:
- is there a genuine indication of the need for the IME? Prolonged absences, absences without explanation or evidence of an illness relating to the employee’s capacity to perform the inherent requirements of the job would genuinely indicate the need
- has medical information been provided that explains absences and demonstrates a fitness for work? If so, there would be little need for an IME
- is the industry or workplace particularly dangerous or risky? The less dangerous or risky the workplace, the less need for an IME
- are there legitimate concerns the employee’s illness or injury would impact on others in the workplace? If so, an IME may be reasonable
- is the medical practitioner, and the employee, to be informed of the issues of concern and are those issues focused on the inherent requirements of the job? If the medical practitioner in particular is given inadequate information about the actual job requirements, this may make any request for an IME unreasonable
- is the IME truly aimed at determining, independently, whether the employee is fit for work? Conflating disciplinary matters with medical matters can, in some circumstances, indicate that a request for an IME is for an improper purpose and, as such, not reasonable.