The Fair Work Commission has found that a company’s request that an employee be examined by a company doctor was unreasonable, and the subsequent termination for failure to comply with that request unfair. So, when is it reasonable to send an employee to the company doctor?
The company advised the employee (who had been stood down with pay) that he could not return to work until he attended a medical examination by a doctor nominated by the company. A lawful and reasonable direction, one might say. The employee didn’t attend the scheduled appointment. The company terminated the employment for failure to comply with the direction.
So what went wrong?
On whether the direction was lawful, the Commission found neither the employee’s contract, nor the company’s OHS policies, conferred a right on the company to direct an employee to attend a medical.
On reasonableness, the Commission considered that the company had paid scant attention to whether the medical was relevant to assessing the employee’s ability to perform the inherent requirements of the role.
The Commission itemised the following (rather lengthy) checklist:
- Was there a genuine need for the examination? i.e. prolonged absences or absence without explanation or evidence of an illness which related to the capacity to perform the inherent requirements of the job?
- Had adequate medical information already been provided?
- Is the industry or workplace particularly dangerous or risky?
- Were there legitimate concerns the illness would impact on others in the workplace?
- Did the employee agree to the assessment by that particular practitioner?
- Was the employee advised of details of the conduct which led to concerns around his fitness for duty?
- Was the practitioner advised of the issues of concern and were those issues focused on the inherent requirements of the job? What information did the company propose to provide to the practitioner about these requirements? Was the employee advised of those matters?
- Was the medical assessment truly aimed at determining, independently, whether the employee was fit for work?
Want to make life easier? Ensure the contract of employment gives the company an express right to direct the employee to a medical practitioner of the company’s choice to assess fitness for the role.