The Federal Circuit Court determined an employer can direct an employee on personal leave to attend an independent medical assessment in order to facilitate their return to work. The Court further found that the actions of the employer to terminate the employee for failing to comply with its direction to be lawful.

In Issue

  • Whether an employer is able to direct an employee whilst on personal leave to attend an independent medical assessment in order to facilitate the employee's return to work?

The Background

Ms Leigh Swanson commenced employment with Monash Health (Monash) in March 2002 in the Education Department as a personal assistant. Following a complaint to the HR department regarding the Director of Nursing (Ms Wight), Ms Swanson took personal leave.

Ms Swanson initially provided no reason for her leave other than a medical certificate noting she was ‘unfit for work’. Her GP later provided a report to Monash noting that Ms Swanson had no impairment relating to performance of her duties of employment, however, was unable to work in any capacity with Ms Wight.

Monash conducted an external investigation in relation to the bullying complaint but concluded that there was insufficient information to establish unreasonable conduct by Ms Wight. Despite the findings, Monash offered Ms Swanson two alternate positions as a personal assistant at two different branches, which Ms Swanson declined.

Monash directed Ms Swanson to attend a meeting and subsequently an Independent Medical Assessment (IMA). Monash directed that a refusal to attend may result in disciplinary action or termination of her employment. Ms Swanson refused on both occasions.

Ms Swanson commenced proceedings against Monash for contravening s.340 of the Fair Work Act 2009 (FWA). Ms Swanson alleges that Monash took ‘adverse action’ as a result of her exercising her workplace right to personal leave.

The Decision at Trial

The Court construed s.97 of the FWA to give rise to an entitlement of an employee to take paid personal leave on the basis that they are ‘not fit for work’ because of personal illness or injury.

However, the Court noted that when an employee takes paid personal leave, the employment relationship and the contract of employment continues. The continuation of such relationship requires an employee to comply with any incidence of work, including directions made by its employer.

It was submitted by Monash that it is an employer’s obligation to provide a safe system of work for its employees. The Court agreed that this obligation is an implied term of the contract of employment which includes a right to require an employee, on a reasonable basis, to attend an IMA. Accordingly, the Court held that the direction made by Monash to Ms Swanson was lawful and reasonable in the circumstances.

Implications for you

If an employee has exercised a right to take personal leave, there is no ‘break’ in the employment relationship. If the leave is due to an unexplained medical absence, an employee is required to follow a direction of their employer and if necessary attend an IMA. Although employees have a right to take personal leave under s.97 of the FWA, an employer is entitled to facilitate an employee’s return to work in response and direct an employee to attend an IMA.

Leigh Swanson v Monash Health [2018] FCCA 538 (9 March 2018)