The Federal Court has provided guidance on when an employer can require an employee to obtain a medical report or undergo a medical examination in respect of an employee’s medical condition.
Implications for employers
This decision provides guidance for employers on the vexed issue of when they can seek further information in respect of an ill employee’s medical condition (beyond the provision of a basic medical certificate). In the present case, the Federal Court concluded that, in circumstances where there is an indefinite and uncertain nature about the duration of the employee’s sick leave, additional information may be sought where this is necessary having regard to the employer’s operational arrangements and statutory obligations.
Background: Relevant Law
The Fair Work Act 2009 (Cth) (FW Act) prohibits a party taking “adverse action” against an employee because the affected party has a “workplace right” (see sections 340 to 342 inclusive). Relevantly:
- a workplace right includes the right to the benefit of a workplace law or instrument; and
- “adverse action” includes action which injures an employee in his or her employment, or alters the position of the employee to his or her prejudice. This may include disciplinary action such as a warning.
Under the QANTAS Airways Limited Flight Crew (Long Haul) Certified Agreement 2005-2006 (Agreement), employees covered by the Agreement:
- must “notify Qantas immediately on becoming ill and … as far as possible, state the nature of the illness and the estimated duration of absence”; and
- before being required to produce a medical certificate or other evidence of unfitness for duty, may take a maximum of 4 occasions or 7 days of sick leave commencing from 20 August in each year. However, if a flight crew member reported in sick on the same day that they were contracted for duty or the following day, Qantas may require the flight crew member to produce a medical certificate or other evidence of unfitness for duty.
On 11 July 2012, First Officer Kiernan, an employee covered by the Agreement, submitted a medical certificate to his employer Qantas, stating that he was suffering from clinical depression and would be unfit for work for 4 months. A second medical certificate submitted on 10 October 2012 disclosed that Mr Kiernan was “suffering a medical condition and would be unfit for normal work” for a further 3 months.
Qantas wrote to Mr Kiernan, asking him to provide a written report from his treating doctor outlining his diagnosis, prognosis, capacity to return to work and anticipated time frame of return. Qantas also requested that Mr Kiernan attend a meeting to discuss the content of the report, how Qantas could assist him and the options available for his return to work.
A lawyer from the Australian and International Pilots Association (AIPA), representing Mr Kiernan, refused to disclose further medical information to Qantas on privacy grounds.
Qantas made a further request for information and warned AIPA that if the direction was not followed it was “likely … to result in disciplinary action being taken” against Mr Kiernan.
Qantas directed Mr Kiernan to produce further medical details on 2 additional occasions and again threatened disciplinary proceedings for his failure to comply with this direction.
AIPA then commenced proceedings in the Federal Court on behalf Mr Kiernan, alleging that Qantas had taken prohibited adverse action against Mr Kiernan in breach of the FW Act. The AIPA contended that the threats of disciplinary action constituted prohibited adverse action, as the reason for them was that Mr Kiernan had exercised his “workplace right” under the Agreement to provide a medical certificate (and no more) as evidence that he was unfit for duty.
Justice Rares found in favour of Qantas, holding that:
- the relevant clause of the Agreement gave Qantas the right, at its election, to require Mr Kiernan to produce evidence of unfitness for duty by providing information about the nature of his illness and estimated duration of his absence;
- even though the Agreement did not expressly require Mr Kiernan to provide information regarding his “diagnosis, prognosis, capacity to return to pre-injury duties and expected date of return to work”, the terms of the Agreement (and relevant legislation) were not a complete statement of the parties’ rights and obligations in this respect;
- the Agreement and relevant legislation did not displace the contractual relationship between the parties. There is an implied contractual term for an employer to be able to require an employee:
- first, where necessary, to furnish particulars and/or medical evidence affirming his or her continuing fitness to undertake duties; and
- secondly, where there was a genuine indication of a need for it, on reasonable terms, to attend a medical examination to confirm his or her fitness;
- in the present case, Qantas reasonably required additional information about Mr Kiernan’s illness because:
- it had become apparent that there was an indefinite and uncertain nature about the duration of Mr Kiernan’s sick leave and the potential for him to return to work;
- Qantas’ operational requirements meant it had to undertake significant advance planning of its rosters. It could not simply return Mr Kiernan to work at a moment’s notice, hence the need to understand the likely length of his absence. The duration of Mr Kiernan’s absence had also resulted in a suspension of his licence to fly under relevant aviation laws, which complicated his return to work arrangements; and
- Qantas has work health and safety obligations to ensure the safety of passengers and other workers, for example, by ensuring pilots who are unfit to fly do not do so, and by entering into appropriate roster arrangements;
Qantas’ advice to Mr Kiernan that he would be subject to disciplinary action if he failed to take required steps was not a threat of adverse action, as there is a “qualitative distinction between expressing a contemplation that something may happen in the future if a particular event or events do not occur, and asserting that the employer intends, in any event, to do something that will threaten the employee’s rights”; and
in any event, the evidence was that Qantas had no intention, purpose or reason that involved any interference with Mr Kiernan’s rights to enjoy whatever benefits the relevant clause of the Agreement may have conferred upon Mr Kiernan.
Australian and International Pilots Association v Qantas Airways Ltd  FCA 32