The management of long term sickness absence cases can be difficult for employers. This is particularly relevant if an employee is reluctant to provide information about their condition and prognosis.
This is often amplified by the fact that many medical certificates, in keeping with the Australian Medical Association guidelines, often only state that the employee is unfit to work for a given period. When subsequent medical certificates are provided in the same form it becomes very difficult for an employer to deduce anything regarding the expected duration of the absence and if the employee will ever be able to safely return to work. So can an employer demand further medical information?
In Australian and International Pilots Association (AIPA) v Qantas Airways Limited (2014) FCA 32 the Federal Court recently ruled that employers may have an implied right to require employees to provide more detailed medical reports.
The AIPA pursued an adverse action claim against Qantas on behalf of a pilot who had been absent for work for over six months. During his absence, the pilot submitted medical certificates to Qantas indicating that he was suffering from clinical depression and initially stating that he would be unfit for work for three months. This was subsequently extended. In response, Qantas requested that the pilot provide a written medical report regarding:
- his medical prognosis;
- the expected duration of his absence; and
- the likelihood of him being able to return to work and perform the inherent requirements of his role.
The AIPA objected to the request, claiming that the pilot had complied with the requirements under the Enterprise Agreement by producing a medical certificate as evidence of unfitness for duty. The AIPA asserted that there was no lawful basis for Qantas to request further evidence.
In response, Qantas advised the pilot that if he failed to provide the information requested he could face disciplinary action. The AIPA claimed that, in doing so, Qantas had taken adverse action against the pilot for exercising a workplace right to provide a medical certificate evidencing his unfitness for duty and take sick leave under the Enterprise Agreement.
The Federal Court disagreed and found that Qantas’ request for further information had not interfered with the pilot’s rights under the Enterprise Agreement – Qantas had never challenged his entitlement to take sick leave. The Court considered that it would be ‘quite unrealistic’ to expect Qantas to have no right or ability to require a sick employee to provide it with the sort of information it had requested.
The information provided to Qantas in the medical certificate told Qantas nothing about how it should plan for the pilot’s absence or his return to work beyond the period stated in the medical certificates, which could be extended. The information requested was necessary to allow Qantas to comply with its obligations under the Enterprise Agreement regarding rostering requirements, and also to allow it to conform with its statutory obligations to ensure the health and safety of the pilot and his colleagues (both on his return to work and during his absence). It was therefore necessary to imply a right within the employment contract for Qantas to require the employee to provide further medical information.
Lessons from the Case
- Employers can protect their position by ensuring contracts of employment or enterprise agreements include an express right to require an employee to provide medical information or attend medical examinations.
- In the absence of an express provision, a right may be implied into the contract if the information is required for health and safety purposes.
- The impact of the employee’s absence on the employer’s ability to effectively manage its business may provide a valid basis for such a request.
Did You Know?
Employers are obliged to make minimum superannuation contributions for independent contractors that are engaged as “individuals”. Under the Superannuation Industry (Supervision) Act 1993 (Cth) the meaning of “employee” is expanded to include a “person who works under a contract that is wholly or principally for the labour of the person” which can include an independent contractor who is not engaged through an interposed entity (such as a company or trust).
While it is possible to engage independent contractors as individuals, it is strongly recommended that independent contractors are engaged via an interposed entity, as this is a key indicia (amongst others) in assessing whether a relationship is one of employment or is a true independent contractor arrangement and whether tax withholding and superannuation obligations are applicable.