Fair Work Commission
which cost the employer more than $45,000.
The employee in question took one day’s personal leave in June 2015, for which he provided a medical certificate. On the same day, the employee was stood down with pay and told by the employer that he “did not seem to be coping very well at work and we are concerned for your welfare.”
Over the prior months, the employee had made a number of complaints to his manager including that another employee was failing to complete tasks, he was having difficulty keeping up with the rate at which boxes had to be packed (which had recently been increased) and he had concerns about bullying treatment from colleagues after his colleagues became aware he was suffering from, and being treated for, depression.
The Commission found that there was no reasonable basis to assume that the employee had any illness which related to his capacity to perform the inherent requirements of his job
The employee was advised that he could not return to work until he attended a medical examination by a doctor but the employee indicated through his union representative that he did not wish to attend. He was stood down without pay.
The employee received a letter saying that if he failed to attend a medical examination organised by the employer, his employment would be terminated. On 23 July, the employee was advised that his employment had been terminated, on the basis that he had failed to comply with a direction to attend an independent medical examination, as well as another direction to communicate only with the employer’s Vice President of Human Resources.
In its determination, the Fair Work Commission
drew up a list to be answered in deciding if medical exams were reasonable:
- Was there a genuine indication of the need for the examination, such as prolonged absences from work, or absences without explanation, or evidence of an illness, which related to the capacity to perform the inherent requirements of the job?
- Had the employee provided adequate medical information which explained absences and demonstrated fitness to perform duties?
- Was the industry or workplace particularly dangerous or risky?
- Were there legitimate concerns that the employee’s illness would impact on others in the workplace?
- Did the employee agree to the assessment by the medical practitioner selected by the employer?
- Was the employee advised of the details of the conduct which led to the concerns that he was not fit for duty?
- Was the medical practitioner advised of the issues of concern, and were those matters focused on the inherent requirements of the job? What information was proposed to be given to the medical practitioner about the actual job requirements?
- Was the employee advised of the matters to be put before the medical practitioner for his assessment?
- Was the medical assessment truly aimed at determining, independently, whether the employee was fit for work?
The Commission answered ‘no’ to almost all of these questions. In particular, the Commission found that there was no reasonable basis to assume that the employee had any illness which related to his capacity to perform the inherent requirements of his job. The employee was awarded total compensation of $45,907.82.
Employers have been urged to take reasonable steps before sending employees for medical exams, and ensure that any medical concerns are relevant to the capacity to perform job roles. This follows the case in the