- Richard Ottley, Partner, Swaab Attorneys
ELM: Richard, a lot of HR professionals still struggle with the question of “to what extent can employers insist on adequate medical information?” when dealing with an ill or injured employee. To clarify this for our readers, what are your top five pieces of advice on this?
RICHARD: The short answer is, that an employer will from time to time be entitled to require medical information about their employees in order to comply with their responsibilities to ensure a safe workplace. There will be instances where an employer will need to make informed decisions about whether an employee can perform the inherent requirements of the position. They may also need to understand whether the employee’s continuation in their role represents a threat to their health and safety or that of others.
Whether an employer should accept existing evidence concerning illness or injury or not, will necessarily be determined by the context and the facts of each case. There are however certain factors which should play a role in influencing the decision to seek further medical information. These include: –
- Is there a genuine indication of the need for further information such as prolonged absences from work or absences without explanation, or evidence of an illness or injury which relates to capacity to perform the inherent requirements of the job? If so this militates in favour of further information.
- Is the information provided by the employee to date adequate to explain absences or demonstrate fitness to perform duties? If not this militates in favour of further information.
- Is the industry or workplace particularly dangerous or risky? The more dangerous or risky the environment the more likely it is that more comprehensive evidence of fitness to safely perform duties might reasonably be required.
- Are there concerns that the employee’s illness might impact on others in the workplace. For example, could the employee’s illness or injury impact on their ability to safely perform their duties, or potentially put others at risk in the process. Could the current work environment exacerbate symptoms associated with mental illness.
- In all the circumstances is the employer satisfied with current evidence of fitness for work. If not, what further evidence is required and how best can that be provided.
ELM: Can you provide us with two case examples that really highlight how an employer can lawfully and reasonably direct an employee to attend a medical examination? What can we learn from each of these examples?
RICHARD: I will give you two cases where an employer directed an employee to attend a medical examination. In one case the Federal Court found the employer had behaved reasonably and in the other the Fair Work Commission determined that the direction to attend a medical examination was not a lawful and reasonable direction.
In Thompson v IGT (Australia) Pty Ltd  FCA 994 an employee sought an order from the Federal Court to restrain his employer from demanding that he undergo a psychiatric assessment. His application was unsuccessful. The employee had experienced significant problems with a back injury which had persisted for some considerable time. Ultimately his employer sought to arrange for the employee to see two doctors. One was a general surgeon, the other a psychiatrist. The employee attended the appointment with the general surgeon but declined to attend the appointment with the psychiatrist. The employee claimed a psychiatric assessment fell far beyond what was relevant to his condition. The employer persisted with its request that the employee undergo a psychiatric assessment given the various circumstances of the case including further periods of absence from work. The employee then approached the Federal Court to restrain the employer from persisting with its request.
The Federal Court stressed what had been said in an earlier decision, namely, not only must it be reasonable for an employer to request the employee to attend a medical examination but the terms on which the examination is undertaken must be reasonable. This required a sensitive approach including a respect for privacy so far as is possible.
The Federal Court concluded that there was a proper basis for requiring Mr Thompson to undergo the psychiatric examination given all the circumstances. Importantly it also made findings that the direction to attend was made on reasonable terms. Those terms which were in the letter directing the employee to attend the medical appointment incorporated the following elements: –
- Referencing the history of the matter.
- Referencing concerns about fitness for work and why the appointment had been scheduled.
- Having a clear statement that the direction was considered a lawful and reasonable direction.
- Confirmation that the employer had no relationship with the nominated doctor.
- A statement that the employer would bear all the costs of the appointment including paying the practitioner’s fees and reimbursing the employee’s travelling costs.
- Confirmation that the employee would receive normal pay while attending the appointment during working hours.
Other matters which may be relevant to the reasonableness of the terms of the direction to attend include ensuring the employee understands the reason for the medical examination and the confidentiality of the process.
A decision in which an employer was unsuccessful in defending a decision to terminate on the basis of an employee’s failure to comply with its direction to attend a psychiatric examination, was that of the Fair Work Commission in Cole v PQ Australia Pty Ltd  FWC 1166.
In this instance the employee Mr Cole brought a claim for unfair dismissal which was ultimately successful, and a significant award of damages made in the employee’s favour. At issue was whether or not the employer had lawfully and reasonably directed the employee to attend a medical examination. Mr Cole was employed as a packer. He used to work night shifts. Mr Cole complained of workplace bullying and there was a history of tension between him and various employees and there were a number of incidents in which he was involved. Mr Cole had been suffering from depression for which he had been receiving treatment. However in the Commission’s view, the evidence did not justify the conclusion that Mr Cole may be unable to perform the inherent requirements of the job. The Commission further decided that none of the incidents on which evidence had been given, gave rise to a reasonable concern that Mr Cole may be unable to perform the inherent requirements of the job due to illness.
Having made these key findings, the Commission went on to consider other matters and concluded that there was no proper basis upon which to require Mr Cole to attend for a medical examination and therefore the direction given to him to do so was not a lawful and reasonable direction. Therefore a decision based on Mr Cole’s refusal to comply with that direction could not support the decision to terminate him.
A key message from this decision is that employers should carefully consider how and in what way, a suspected illness or injury might be said to impact upon the ability of the employee to perform the inherent requirements of the job, prior to making any decision to direct the employee to attend a medical examination. If an employee is for example suffering a depressive illness for which they are receiving treatment this might caution against a referral.
ELM: Is there a “legal way” of challenging medical certificates in your opinion Richard? If so, what would that be?
RICHARD: The default position with respect to medical certificates is that they are to be given the utmost weight and accepted, except in the most “unusual or exceptional circumstances“. The professional consequences for practitioners who issue false medical certificates explains why this is so. Evidence of the most unusual or exceptional circumstances may include such things as cogent evidence of activities by the employee inconsistent with the medical certificate or the obtaining of further medical evidence.
One example of where an employer decided to essentially ignore a medical certificate provided by its employee was in the case of Anderson v Crown Melbourne Limited  FMCA 152. In this instance an employee attended a football match and subsequently provided their employer with a medical certificate covering their absence that day. The evidence was that the employee had told his employer that he intended to take sick leave to attend the match and had been warned by his employer against doing so. The employer’s decision to terminate for what it considered was misconduct was upheld by the Court, and by implication the medical certificate was successfully challenged by the employer. However this case was fairly unique and employers if they wish to “challenge” a medical certificate provided by their employee, would usually do so by obtaining further medical evidence which contradicts the medical certificate.
ELM: The topic of “social media in the workplace” is still a very grey topic for employers. Have there been situations where employers can use an employee’s social media as evidence in court when there is doubt of the legitimacy of the employee’s illness or injury? What more can you tell us about this?
RICHARD: Social media evidence has featured in recent decisions before the Fair Work Commission but I am not aware of a decision directed towards the legitimacy of an employee’s claimed illness or injury at work. There is no reason to think that social media evidence will not be admitted in this context.
There have been at least three decisions in recent years in which social media commentary by employees unfavourable to their employer was admitted into evidence. In a decision in Little v Credit Corp Group Limited  FWC 9642 an employee was terminated on the basis of private postings on his personal Facebook account which, amongst other things, criticised an organisation with whom his employer had professional dealings. The Fair Work Commission backed the employer’s decision to terminate based upon the employee’s conduct on social media.
Social media postings were admitted into evidence in a decision of Culpin v Scandinavian Tobacco Group Australia Pty & Another 2013 FCCA 1666. In that decision the Court had to consider whether or not the applicant was suffering from anxiety and depression such as to make her incapable of filing an application to the Court within the required timeframe. Social media evidence was admitted to demonstrate that the applicant had been travelling and setting up a business during this period. However it did not ultimately displace medical evidence from two treating doctors that a protracted and significant depressive illness experienced during the appeal period had a significant effect on her ability to deal with legal proceedings.
These decisions tell us that social media evidence may well have a role to play in supporting decision-making by an employer in circumstances where the employee’s social media postings are in conflict with an account rendered by the employee to the employer. On this question I’m sure it will be a case of “watch this space“.
About Richard Ottley:
Richard has a particular focus on franchising and employment law. He qualified as a solicitor in 1983. After extensive experience in the United Kingdom and Australia, Richard joined Swaab Attorneys in 1997. Richard is also a Notary Public and qualified mediator.
At Swaab Attorneys, Richard Ottley is part of the firm’s commercial practice. His employment law practice consists of drafting employment agreements and contractor agreements, advising on award coverage, statutory entitlements and the rights and obligations of both employees and employers including under the Fair Work Act, and whether restraint of trade clauses are enforceable. He also advises in connection with disciplining and termination of employees including unfair dismissal claims, claims for adverse action and discrimination based claims.
Richard recently addressed ELM’s Managing Ill Employees workshop where he was commended for his “engaging, relevant and informative session” and was described as being “very knowledgeable on employment law issues”.