The Fair Work Commission has ruled that an employer was entitled to require one of its employees to attend an appointment with a general practitioner of their choice to determine whether he was fit to return to work, and that the employment was fairly terminated when he refused to attend.
The employee sought to return to work after a long period of leave following shoulder surgery. He provided medical certificates from his treating doctor and surgeon, but the employer asked him to also attend its nominated doctor for an examination before re-commencing his employment. The employer cited requirements to provide a safe workplace under State legislation and more specifically, to ensure employees were “not exposed to an unacceptable level of risk”. The employee refused and his employment was terminated.
The Commission agreed that the employer was entitled to request the employee be examined by the employer’s nominated doctor prior to recommencing work. The Commission pointed to coal mine-working legislation, which required employees to comply with all instructions given by the coal mine operator regarding health and safety issues.
It also found that the request more generally “fell within the scope of his contract of service and was otherwise not unlawful, and was reasonable in the circumstances”. This type of request was reasonable because the employee had been away from work for eight months, his duties involved heavy labour, he had undergone shoulder surgery, his medical certificates were expressed in very general terms, and the employer’s doctor had specialised experience in the mining industry.
Key points for employers:
- An employer may be able to request a medical examination of an employee returning from sick leave where that request is reasonably within the scope of service of the employee.