- Christy Miller, Partner, Clayton Utz
- Claire Tuffield, Lawyer (Senior), Clayton Utz
And equally important – once the medical evidence is received – what’s next?
‘When can employers lawfully direct an employee to provided further medical evidence?’ is often one of the key questions when managing ill or injured employees. This is a difficult issue for employers to grapple with because, like many employment issues, the answer is – ‘it depends’.
It depends on the circumstances of each case, and in particular whether:
- the request is reasonable and necessary to determine the employee’s ability to perform the inherent requirements of the role;
- the information is necessary for an employer to satisfy its workplace health and safety obligations (not only in relation to the employee concerned but to other workers and the public);
- the employer has genuine concerns regarding an employee’s fitness for work;
- the medical evidence provided to date is inadequate eg, unclear, conflicting, outdated or suspicious; and
- there is any additional power upon which the request can be based.
To assist you work through the maze we have set out some common questions and answers below.
Do I have a contractual right to request more information and how do I use it? Or if not, what do I do?
- Always check your contracts and Enterprise Agreements (EA) as a starting point to consider the right to request additional medical information.
- If there is no express right set out in a contract or EA, consider if you operate within an industry where employers have a statutory right to request this information. For example, in Grant v BHP Coal Pty Ltd  FCAFC 42 (Grant), the employer successfully relied on the Queensland’s Coal Mining and Safety and Health Act, which creates an obligation for mineworkers to comply with safety-driven management instructions and includes complying with a direction to attend a medical appointment. In Grant the employer was able to terminate the employee for failing to comply with such a direction.
- If no contractual or statutory right is available an employer may be able to issue a reasonable and lawful direction to provide further medical information (or attend an independent medical examination). The issue of whether a direction is reasonable and lawful was considered by the Fair Work Commission last year in the case of Cole v PQ Australia Ltd t/a PQ Australia  FWC 1166 (Cole). In the Cole case the FWC listed a number of relevant questions when determining if the direction in that case was reasonable, including:
(a) Is there is a genuine need for the further medical information / examination eg, is the medical evidence previously provided unsuitable, the industry or workplace dangerous, or will the medical concern impact on the employee or others to safely operate in the workplace?
(b) Have you informed the employee about those concerns in order to justify and explain to them why the direction is necessary and reasonable?
- Before you make any request for medical information you must turn your mind to what power exists to make the request, and if there is no express power whether, it will be considered reasonable. Your decision making should be documented and clearly explained to the employee to enhance the reasonableness of the direction.
When is it appropriate to move to termination?
- Once you have received and reviewed the further medical evidence, it may be appropriate to move to termination of employment eg, if the employee is unable to perform the inherent requirements of the role and no reasonable adjustments can be made to allow the employee to safely perform at work.
- On the other hand, if the employee fails to comply with a reasonable and lawful direction to provide medical evidence, it may also be open to terminate an employee’s employment. However, before doing so, it is essential to consider whether the employee could (or should) comply with the direction and any reasons (including medical) for the failure to comply. As was the case in Cole, simply providing the employee multiple opportunities to comply with a direction does not automatically mean the direction will be reasonable and provide an employer a valid reason for moving to termination of employment.
- You should also consider the employee’s vulnerabilities, including considering what you know should know about the existing medical condition or previous/existing conditions, and adapt the process accordingly. Sometimes it may be necessary to go back and re-do or revisit a step in the process to ensure the employee is provided with sufficient time and information to understand the necessity for the additional information and comply.
- Regardless of the reason for termination, ensure that you have provided procedural fairness in relation to the termination process – provide the employee with sufficient information and opportunity to respond before terminating an employee on medical grounds or due to failure to comply with a reasonable and lawful direction.
Should I be writing this down?
- Paper trail (being your correspondence with the employee / medical professionals / employee representative) has a dual purpose in assisting defensibility of your actions and also assists employees understand the expectations on them which will in turn aid management of any claims made about the process.
- Your paper trail will be one of the first things the Courts (or the Fair Work Commission, Anti-Discrimination Tribunals and/ or workers’ compensation regulators), will look when considering the reasonableness and lawfulness of any decision to request additional medical information or move to termination of employment. Therefore, consider if your paper trail:
(a) Accurately records the factual basis for the concerns and what they are (including (referencing relevant documents, evidence, examples and communications).
(b) Outlines what is expected from your employee and what action (including management or disciplinary action) is being proposed / issued and why.
(c) Outlines what support and assistance is being provided (eg, contact details for employee assistance providers or flexible leave entitlements).
What proactive steps can I take now?
There is no time like the present to take proactive steps to put in place good procedures for the management of ill or injured employees, including:
(a) Reviewing employment contracts / EAs, to include an express contractual right. This is particularly important if you operate in an industry or occupation where an employee’s mental fitness for either physical or psychological fitness is paramount eg, mining, construction or professional services profession.
(b) Review and update (if necessary) position descriptions. Do they reflect the work required to be done (inherent requirements of the position), and / or the work that is actually being done by the employee?
(c) Begin (or re-commence) communications with your employees if you are concerned. Effective communication and transparency with your employees is key to minimising and the risks associated with managing ill/injured employees (eg, unfair dismissal, adverse action, bullying, discrimination and workers’ compensation claims). Ensure your paper trail reflects your communications, offers of support, and the need for additional information
Employers must be able to address concerns regarding an employee’s health and safety while at work and operationally continue to manage the business in the employee’s absence or on the employee’s return. However, it is an area that requires some careful planning and documentation.