A recent decision of the Fair Work Commission (FWC) has found that, in an effort to comply with work health and safety obligations, an employer is entitled to direct an employee, returning to work after an injury, to undergo additional medical assessment beyond what is contemplated in the employment contract or enterprise agreement.
A boilermaker at a mine suffered an initial workplace injury to his shoulder. He subsequently reinjured his shoulder outside of work, underwent surgery and was off work for eight months. The employee provided his employer with medical certificates which did not specify his medical condition and stated that he was fit to return to his pre-injury duties. Concerned with satisfying its obligation under the Coal Mining Safety and Health Act 1999 (Qld) (Coal Act) to ensure workplace health and safety, the employer directed the employee to attend its nominated medical specialist for a functional assessment and put the employee on paid leave for the duration of this process.
The employer dismissed the employee primarily for failing to attend the medical appointment (and the rescheduled medical appointment) arranged by the employer.
The employee filed an unfair dismissal application with the FWC on the basis that the employer’s direction to attend an independent medical assessment was not lawful because the enterprise agreement only required medical clearance from the employee’s doctor prior to returning to work from a non-work related injury.
The FWC held that the dismissal was not harsh, unjust or unreasonable, and the employee’s claim was dismissed.
Relevantly, the FWC found that the employer’s direction to the employee to attend a medical assessment was lawful (in light of the employer’s obligation under the Coal Act to take any reasonable and necessary course of action to ensure the health and safety of the employee and other workers) and reasonable in the circumstances. Further, the employee’s conduct constituted a failure to comply with the employer’s lawful and reasonable direction and this failure was unreasonable in the circumstances.
The FWC noted that the employer should have clearly explained to the employee the reason for the direction (ie the employer’s work health and safety responsibilities and associated concerns about the limited medication information it had been given regarding the employee’s return to work).
Lessons for employers
- An employer’s work health and safety obligations may permit directions to, or requirements of, employees that go beyond what is contemplated in an employment contract or applicable enterprise agreement. However, any such direction or requirement must be lawful and reasonable, and further the objectives of work health and safety.
- An employee’s failure to comply with such a direction or requirement may justify the employer’s decision to terminate their employment.
- If an employee asks the basis upon which their employer is directing or requiring the employee to do something beyond what is contemplated in an employment contract or applicable enterprise agreement (eg to attend an independent medical assessment), the employer should give clear reasons.