The Federal Court recently held in Australian and International Pilots Association v Qantas Airways Limited1 that it is reasonable for an employer to require an employee to produce a medical report, or submit to a medical examination, in circumstances where the employee has been on extended sick leave and has provided little or no information regarding the nature of the illness, and the expected duration of the illness.
The Australian and International Pilots Association (AIPA) commenced proceedings in the Federal Court, seeking payment of pecuniary penalties and declarations that Qantas Airways Limited (Qantas) had taken adverse action against a Qantas employee, First Officer Gregory Kiernan.
Mr Kiernan had been absent on paid sick leave since 11 July 2012, and remained absent on a combination of paid and unpaid sick leave until he ultimately retired on medical grounds on 24 January 2014.
Whilst absent from work, Mr Kiernan provided medical certificates to Qantas, which generally lasted for three months, and all but one of the medical certificates included the generic statement that Mr Kiernan ‘is suffering a medical condition and will be unfit for normal work’. Only one of the medical certificates departed from the vague diagnosis of a ‘medical condition’ by stating that Mr Kiernan was suffering from ‘clinical depression’.
On 19 November 2012, after Mr Kiernan had been absent on paid sick leave for over four months, but before his entitlement to paid sick leave was exhausted, Qantas wrote to Mr Kiernan requiring that he provide a written report from his treating doctor and attend a meeting to discuss the contents of the report, the assistance Qantas could provide and the options available. Qantas specifically required that the medical report address Mr Kiernan’s ‘diagnosis, prognosis, capacity to return to...pre-injury duties and the anticipated time frame’.
AIPA responded on behalf of Mr Kiernan, asserting that there was no lawful basis on which Qantas could require an employee to provide a medical report, and expressing concerns about the protection of Mr Kiernan’s personal information.
Qantas made two further written requests that Mr Kiernan produce a medical report and attend a meeting, then escalated the matter by warning that ‘…further failure to provide a medical report and/or attend the meeting may lead to disciplinary action…’. Mr Kiernan received two warnings of this nature before Qantas escalated the matter further with a ‘show cause’ letter. Qantas provided Mr Kiernan with three weeks in which to respond to the show cause letter, however no response was received as AIPA commenced proceedings during this three week period.
AIPA, on behalf of Mr Kiernan, refused to provide Qantas with a medical report and advanced the following arguments in support of their position:
- AIPA disputed Qantas’ entitlement to know the exact nature of illness suffered by Mr Kiernan;
- AIPA suggested that Qantas would only have a right to make enquiries about an employee’s health in circumstances where the particular employee had exhausted their leave entitlements;
- AIPA asserted that Mr Kiernan had provided a medical certificate as required by the applicable Collective Agreement.
- AIPA argued there was no contractual, legislative or common law obligation for an employee to provide anything other than a medical certificate; and
- AIPA was not satisfied that the privacy of Mr Kiernan’s medical condition would be protected by Qantas, notwithstanding Qantas’ assurance that it was aware of the potential sensitivity of the medical information and that access would be limited to appropriate Qantas management.
AIPA further argued that, by threatening Mr Kiernan with disciplinary action, Qantas took adverse action against Mr Kiernan because of his exercise of a workplace right purported to arise under s 107 of the Fair Work Act 2009 (Cth) (FW Act) to provide a medical certificate as evidence that he was unfit for duty.
Qantas argued that it was lawful and reasonable for Qantas to require a full medical report in order to allow Qantas’ operations management to:
- Understand the issues that directly impacted on the employment relationship, such as the nature of the illness, the prognosis, the expected duration of any further absence from work, and the likelihood that the employee will ultimately be able to safely return to work and perform the inherent requirements of the role;
- Manage long term absences from the workplace and manage the costs and risks to the business associated with such absences; and
- Meet its work health and safety obligations.
The Court’s findings
Rares J rejected all of the arguments advanced by AIPA and made the following findings:
- Qantas had an implied contractual right to require a medical report and to require the employee to attend a meeting in order to discuss issues arising out of the medical report. Where there is no express provision dealing with this issue, it is necessary to give business efficacy to contracts of employment that a term be implied by law enabling an employer 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’.2
- The right to require a medical report is not limited to circumstances where an employee has exhausted his or her sick leave entitlements. Rares J opined:
‘An employee’s statutory, certified agreement or analogous industrial award based entitlement to take sick leave does not displace the contractual relationship in which, at some point, the employer is entitled to make its own business arrangements to adjust for the impact that the leave…will have on it and to address its [work health and safety] obligations…’.3
- Section 107 of the FW Act did not create a workplace right as advanced by the AIPA. In any event, Rares J found that Qantas at all times respected Mr Kiernan’s right to take personal leave and accepted the medical certificates as evidence of his unfitness for duty. The purpose of Qantas’ request for further information was not to undermine Mr Kiernan’s entitlement to personal leave – rather, the purpose was to accommodate his personal leave and to enable Qantas to appropriately plan for the expected absence and any return to work.
- By threatening to take disciplinary action against Mr Kiernan if he failed to co-operate, and by requiring Mr Kiernan to show cause as to why disciplinary action should not be taken, Qantas did not take adverse action against Mr Kiernan or otherwise threaten his rights. Rares J held that:
‘A statement that an employer was contemplating that it might take such action in the future…fall[s] short of making a statement that [the employer intends] to take that action come what may. 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’.4
Lessons for employers
Employers should not interpret this case as authority for the proposition that it will always be reasonable to demand a medical report and to foreshadow disciplinary action if the employee refuses to co-operate.
Although employers must consider the appropriateness on a case by case basis, it can be broadly said to be reasonable for an employer to require a medical report in the following circumstances:
The employee has been absent for an extended period of time and there is uncertainty about the likely duration of the absence, and the potential for the employee to return to work. For example, where the employee is not in regular contact with the employer and there are no updates being informally provided to indicate that the employee is improving and likely to be able to resume duties after the expiration of the current medical certificate; and
The employer requires further information beyond what has been supplied in the medical certificates in order to plan for the future of the business and to meet its work health and safety obligations. For example, where the employee, who performs manual labour, is off work for a physical injury and limited or no information is contained in the medical certificate as to whether the employee is returning to full fitness or at least a level allowing them to perform the inherent requirements of their position without risk to the health and safety of themselves and their co-workers; and
- The information requested by the employer goes no further than what is reasonably necessary for the employer to conduct business planning and meet its work health and safety obligations. A request for information which goes beyond what is strictly necessary may be a breach of the Privacy Act 1988 (Cth).
It is also important for employers to be aware that certain workers’ compensation and associated legislation (for example s 232B of the Workers Compensation and Rehabilitation Act 2003 (Qld))5 preclude an employer from terminating a worker who has sustained a work related injury solely or mainly because the worker is not fit for employment as a result of that injury for a set period of time. This time period varies between three and twelve months, depending on the jurisdiction.
The threshold for requiring an employee to undergo a medical examination by a doctor of the employer’s nomination is higher, in the sense that an employer would need to establish that a report from the employee’s treating doctor is inadequate for some reason. Examples would be where an employee is relying on medical certification from a general practitioner and the employer is seeking a report from a specialist in the appropriate field; or where the treating doctor is not in receipt of certain information, knowledge or material, such as knowledge of the work and ergonomics of the work tasks in order to assess the worker’s functional capacity to return to performing those tasks.
Given that these circumstances need to be considered on a case by case basis and the risks of discrimination, bullying/harassment and compliance complaints, it is recommended that employers considering the proactive management of a worker absent through injury or illness consult with their trusted legal advisors so that the process can be appropriately managed and the risks of litigation and liability can be minimised.