Employers and employees must be aware that detailed medical reports sit at the centre of managing illness and injury in the workplace. The Federal Circuit Court decision in Grant v State of Victoria (The Office of Public Prosecutions)  FCCA 17 has highlighted the importance of considering and acting on medical evidence when dealing with acts of misconduct. Meanwhile, the Federal Court has found that an employer has an implied contractual right to direct an employee to provide reasonable information, including more detailed information than is set out in a medical certificate: Australian and International Pilots Association v Qantas Airways Ltd  FCA 32.
Grant v State of Victoria (The Office of Public Prosecutions)
Mr Grant was employed as a solicitor by the Office of Public Prosecutions (OPP) from October 2007 to August 2012. In late 2010, he was diagnosed with deep vein thrombosis, requiring extensive treatment and ongoing blood tests.
In mid-2011, the OPP raised with Mr Grant a number of concerns about his performance, including his frequent absences from work. By February 2012, the OPP had become seriously concerned with Mr Grant's performance, in particular relating to absences from work and his failure to notify the OPP of those absences. Mr Grant subsequently disclosed that he had been suffering from depression during the preceding few months. After further performance issues, the OPP directed Mr Grant to provide a medical report from his treating doctor detailing his condition, its impact on his ability to perform his role and whether the OPP needed to make any modifications to his work to assist in recovery.
Mr Grant's doctor provided a report to the OPP. The report stated that Mr Grant suffered from a long-term anxiety condition, compounded by bouts of depression and self-medicating with alcohol. The doctor noted that Mr Grant was starting to respond to treatment and that his prognosis was excellent. This initial report did not contain any detail about the time of his expected recovery, or any information about what the OPP should or could do to modify his work.
The OPP asked Mr Grant to attend an Independent Medical Examiner (IME) for the purposes of gaining a better understanding of Mr Grant's ability to perform the inherent requirements of his role. On advice from his union, Mr Grant declined to attend the IME.
Following an investigation by the OPP relating to particular performance issues, Mr Grant's employment was terminated for misconduct. Mr Grant's refusal to attend an IME did not form part of the decision to terminate his employment.
Mr Grant issued proceedings in the Federal Circuit Court. He claimed, among other things, that in terminating his employment, the OPP had taken adverse action against him because of his illness.
Misconduct arose out of medical condition
Judge Burchardt of the Federal Circuit Court found that the OPP had terminated Mr Grant's employment because of his absence from work due to illness, in contravention of the general protections provisions of the Fair Work Act 2009 (FW Act).
Four witnesses gave evidence from the OPP. The court found that two of the witnesses were excellent, whilst another was unremarkable and honest. However, Judge Burchardt was critical of the way the senior decision-maker gave evidence, and did not accept his explanation of his reasons for Mr Grant's dismissal.
His Honour held that:
- in some of his evidence, Mr Grant seemed to have an 'unattractive mix of entitlement, self-service and lack of judgement'; nonetheless, Mr Grant was a good employee who 'misconducted himself' when he was ill;
- Mr Grant's conduct 'arose wholly out of his medical condition' and the OPP 'well knew of the medical condition'; and
- the OPP's decision-maker drew his own conclusions contrary to the clear medical evidence provided by Mr Grant's doctor, and that this decision-maker had sufficient professional experience and education to understand the effect that depression had on a person.
At the time of writing, Judge Burchardt had not determined an appropriate remedy.
Australian and International Pilots Association v Qantas Airways Ltd
Mr Kiernan was employed by Qantas as a pilot. His employment was governed by an enterprise agreement, which relevantly provided that:
- pilots were required to notify Qantas immediately upon becoming ill, giving details of the nature of the illness and the estimated duration of the absence; and
- after a pilot had taken a certain amount of sick leave, Qantas could require pilots 'to produce a medical certificate or other evidence of unfitness for duty'.
From July 2012, Mr Kiernan was absent on sick leave, providing medical certificates from his treating doctor. The first certificate stated that Mr Kiernan was suffering from clinical depression and was unfit for work. It further stated that the doctor had contacted the Civil Aviation Safety Authority requesting that Mr Kiernan's licence be suspended until his condition stabilised. Further certificates, submitted over a six month period, simply stated that Mr Kiernan was suffering from a medical condition and was 'unfit for normal work'.
In November 2012, Qantas directed Mr Kiernan to provide a written report from his doctor, indicating his diagnosis, prognosis, capacity to return to his pre-injury duties and the timeframe for his return. Mr Kiernan's union disputed that Qantas was entitled to require Mr Kiernan to provide such a report. Qantas continued to direct Mr Kiernan to provide a detailed report from his treating doctor, noting that Mr Kiernan risked disciplinary action should he fail to do so.
The union issued proceedings in the Federal Court, alleging that Qantas had breached the FW Act, in that it had threatened to take disciplinary action against Mr Kiernan for reasons including that Mr Kiernan had exercised a workplace right to provide a medical certificate that he was unfit for work.
Implied right to require provision of information
Justice Rares of the Federal Court dismissed the union's application, finding that:
- roster allocation and planning a pilot's return to work required Qantas to be well informed as to a pilot's return to work and any limitations on his or her capacity;
- the relevant clauses of the enterprise agreement were intended to assist Qantas in rostering its pilots. Further, those clauses did not give Mr Kiernan a choice of which form of evidence he could provide when Qantas requested evidence of fitness for duty – rather, that choice was with Qantas;
- an employer has an implied contractual right to require its employees to provide detailed medical information regarding fitness for work. In this case, the necessity to imply such a right arose from the obligations imposed on Qantas by the enterprise agreement and by health and safety legislation; and
- a statement that an employer is contemplating taking disciplinary action in the future does not constitute adverse action. In any event, there was no evidence that Qantas took the action it took for any reason that involved an intention to interfere with Mr Kiernan's entitlement to sick leave.
The decisions provide a useful reminder of employers' rights and responsibilities in managing ill and injured employees. In particular, employers should note:
- the Courts recognise an employer's contractual right 'at some point' (and subject to discrimination laws) to make business arrangements that adjust for the impact of an employee's sickness, and to address the employer's obligations to provide a safe workplace;
- where medical evidence is inconclusive or unclear, an employer should seek further evidence from an employee's treating doctor or an IME, and not make any decisions until that evidence has been considered. The advice sought should include detail of what effect the employee's illness or injury has on their work, and what modifications or adjustments the employer should take to assist the employee; and
- in the absence of express wording in an enterprise agreement or employment contract to the contrary, an employer is entitled to require reasonable information from an ill or injured worker to allow the employer to meet its operational requirements and its obligations under health and safety laws.