A recent decision1 of the Federal Court has found that the employer, Qantas Airways Ltd (Qantas), had an implied right to seek a medical report where the employee had only provided a basic medical certificate.
Managing long term sick leave and absence from the workplace can be difficult for an employer to navigate; this is especially so when the employee has provided only a basic medical certificate that gives no indication of the potential duration or severity of the illness.
The Australian and International Pilots Association (AIPA) sought a declaration that Qantas had contravened the Fair Work Act 2009 (Cth) (the Act) by taking adverse action against First Officer Gregory Kiernan (the Pilot).
The Pilot had been absent from the workplace for over six (6) months. During this time the Pilot had provided Qantas with a medical certificate that stated that he was suffering from clinical depression and that he would be unfit for normal work for the next four (4) months. The Pilot’s doctor also contacted the Civil Aviation Safety Authority (CASA) requesting the Pilot’s licence be suspended until his medical condition was stable. Sometime during this period of leave, another medical certificate was provided to Qantas which stated that the Pilot “is suffering a medical condition and will be unfit for normal work”; this was for another three (3) months.
Following this medical certificate, Captain Ossie Miller, the Fleet Captain, wrote to the Pilot requesting that he provide a written report from his doctor which outlined the diagnosis, prognosis, capacity to return to pre-injury duties and time frame. Following this, Qantas reserved its right to take disciplinary action were made against the Pilot if he failed to provide the requested written report.
The AIPA objected the request made by Qantas, stating that the Pilot had complied with the evidentiary requirements under the Enterprise Agreement. AIPA issued proceedings against Qantas alleging that they had breached the Act by threatening to take disciplinary action against the Pilot for exercising his workplace right to provide a medical certificate to evidence sick leave under the Enterprise Agreement.
The Federal Court found that the request made by Qantas for the medical report did not interfere with the Pilot’s rights under the Enterprise Agreement. Justice Rares found that, provided Qantas was not questioning the Pilot’s right to sick leave, it had an implied right to request further information under the Enterprise Agreement.
Justice Rares found that:
- Qantas required the information to complete roster allocations and prepare for the Pilot’s return to work;
- the relevant clause did not give the Pilot the choice of which form of evidence he could provide Qantas with, it was Qantas’ choice;
- the requirement to provide further evidence was not only an implied contractual right, but necessary to fulfill the obligations that arose out of the Enterprise Agreement and work, health and safety legislation; and
- a statement relating to the taking of disciplinary action for failure to provide medical information will not constitute adverse action where the request made does not interfere with a workplace right.
What Does This Mean for Employers
This case provides guidance on managing employees that take long-term sick leave. Employers should consider that:
- they are able to insert terms into employment contracts / enterprise agreements requiring an employee to provide medical information; and
- they may have an implied right in contract to require medical information if it relates to health and safety. Employers should exercise suitable caution in these cases and seek advices where necessary.