It does not matter what industry you are in, every employer will inevitably face the challenge of managing an ill or injured employee. For employers, a key challenge can be to understand the legal obligations and rights an employer has when faced with the uncertainty of whether an employee who is absent from work will be able to return and in what capacity.
There are a multitude of legal issues that can arise when dealing with an ill or injured worker, including:
- complying with disability discrimination legislation;
- the impact of workers’ compensation legislation (if the injury is work related and a compensable injury);
- compliance with obligations under work health and safety legislation owed to the injured employee and others in the workplace;
- the risk of claims under the general protections provisions in the Fair Work Act 2009 (Cth) (FW Act) and claims arising if the employee is dismissed from their employment;
- the expectation to accept, and not challenge, the evidence the employee provides from a qualified medical practitioner substantiating that the employee is ill or injured;
- the impact of documented procedures under enterprise agreements; and
- the impact of privacy obligations in respect of requesting and dealing with information about an employee’s health.
The recent decision of the Federal Court in Australian & International Pilots Association v Qantas Airways Limited (Qantas case) illustrates the benefits for an employer to understand all the issues presented to them when dealing with an ill or injured employee and the importance of managing their way through them carefully so as to minimise their legal risk.
What was the Qantas case about?
In the Qantas case, the Australian & International Pilots Association (Association) alleged that Qantas had contravened the general protections provisions in the FW Act when it threatened to take disciplinary action against a long term ill employee who failed to furnish Qantas with details regarding his medical condition and ongoing capacity to work.
The employee, First Officer Gregory Kiernan (FO Kiernan) commenced sick leave on 11 July 2012 due to suffering depression and was expected to be absent from work until 12 October 2012.
On 10 October 2012, his treating doctor provided a further medical certificate stating only that FO Kiernan was ‘suffering a medical condition’ and would be unfit for ‘normal work’ until 10 January 2013. On 19 November 2012, Qantas wrote to FO Kiernan asking that he provide a report from his doctor detailing FO Kiernan’s diagnosis, prognosis and capacity to return to pre injury duties and the anticipated time frame for his return. FO Kiernan was also requested to attend a meeting with Qantas so they could discuss with him how Qantas could assist FO Kiernan.
The Association alleged that Qantas’s requests were not lawful or reasonable as FO Kiernan had not exhausted his leave benefit and, FO Kiernan had complied with the evidentiary requirements to support his sick leave.
Qantas made a further request for a medical report, including a report setting out if FO Kiernan could perform the duties of a pilot, his capacity for restricted duties, and any accommodations that should be made to enable a return to work.
FO Kiernan did not provide any medical report as requested, but instead provided a further medical certificate on 8 January 2013 certifying FO Kiernan unfit for duties until 28 March 2013. Qantas subsequently issued FO Kiernan with a disciplinary letter regarding his failure to follow a lawful and reasonable direction to provide the medical information requested and asking him to show cause as to why his employment should not be terminated (show cause letter).
The Association alleged that issuing the show cause letter was adverse action taken against FO Kiernan because he had exercised his workplace right to elect to provide a medical certificate only, which the Association alleged was the only requirement for providing medical information under the provisions of the relevant Qantas enterprise agreement.
The three key issues for determination by Justice Rares of the Federal Court were:
- Did FO Kiernan have a workplace right arising under the enterprise agreement to elect to provide only the medical certificate? Justice Rares found FO Kiernan did not have the ‘workplace right’ as alleged by the Association.
- Was it adverse action to issue the show cause letter threatening disciplinary action if FO Kiernan failed to provide the medical report? Justice Rares was not satisfied that in the circumstances of this case the show cause letter was adverse action. This was because Justice Rares found that the disciplinary action was only a possibility in the event FO Kiernan did not produce the medical report and provide reasons why disciplinary should not be taken against him. The letter was not a statement that Qantas intended to take disciplinary action come what may.
- Did Qantas make the threat because FO Kiernan had exercised his workplace right? Justice Rares was satisfied that Qantas’ request for medical information and the issuing of the show cause letter was not motivated by FO Kiernan’s rights to enjoy benefits under the enterprise agreement.
Importantly, Justice Rares affirmed the finding in the case of the earlier Federal Court case of Blackadder (2002) that an employer has a contractual right to request an employee provide to it particulars of the employee’s condition and such other medical evidence regarding the employee’s fitness for duties, and if necessary to, lawfully direct an employee to attend a medical examination.
Justice Rares determined that this contractual right is not displaced by an employee’s entitlement to take sick leave arising under statute or an industrial instrument.
Lessons for employers
The Qantas case affirms the right employers have to request information, including the provision of medical reports, from ill and injured employees. Nonetheless, employers should proceed cautiously when doing so to ensure a request is reasonable in all the circumstances and the employer has a proper basis for the request. It was relevant to Justice Rares that FO Kiernan has been on sick leave for a substantial period of time.
Employers should also ensure that when dealing with an ill or injured employee they have proper regard to their legal rights and obligations and the legal risks associated with disciplining and terminating the employment of an ill or injured employee.