FWC: clarity on privacy vs need for medical information

'It is… one of the areas that comes up time and time again' says lawyer

FWC: clarity on privacy vs need for medical information

A recent case heard by the Fair Work Commission gives clarity for employers regarding requesting medical information and directing employees to undertake a medical examination by an independent doctor, says lawyer Leanne Nickels.

The case gives good discussion of the competing interests of balancing the needs of employees with regards to their rights under legislation and privacy requirements, with the ability of the employer to access relevant information, says Nickels, partner at DLA Piper Australia.

“It is one of the most challenging areas for employers to navigate and one of the areas that comes up time and time again,” Nickels says.

In the 2023 case Holly Cederman v. Oleochem Project Management Limited [2023] FWC 2896, the employee was an industrial chemist in the oil and gas industry and had asked for transfer to an “appropriate safe job” while she was pregnant.  

Employee constructively dismissed

“She’d requested a role that didn’t require exposure to chemicals during pregnancy because her doctor had said that minimising her exposure during pregnancy would be appropriate,” says Nickels.

“There was much back and forth between her and the employer around what that safe job looked like, whether they needed to do that, whether she was on personal leave, and whether she needed to provide further medical information and medical assessment. In the end she resigned.”

The case ended up before the tribunal with the employee claiming she was constructively dismissed because of the employer’s conduct in trying to deal with her request for parental leave, safe job leave, and personal leave during her pregnancy.

The Commission agreed to recognise the employee was constructively dismissed, making it possible for her to now bring a claim forward on that basis, says Nickels, adding that this provides some much-needed clarity on competing interests.

Clarity on privacy vs. need for information

“The case brings into the discussion a good deal of the case law,” she says.

“It also gives clarity on how that balances with the employee's right to privacy and how an employer needs to approach the obligations it has under legislation to allow an employee flexibility during times such as pregnancy, or when they're experiencing a disability - with the ability of an employer to access relevant information so that they can discharge their obligations to provide safe working environments and comply with the legislation.”

Another good case that helps give perspective on this, she says, is the decision from the Fair Work Commission regarding a dismissal claim in Toni Mueller v. The Real McCoy Snackfood Co Pty Limited t/as Snack Brands Australia [2022] FWC 1871.

In this case, the employee, who was 64 years old, had been diagnosed with multiple health conditions, says Nickels. “The employer was clearly starting to form the view that he wasn't able to do his job anymore.”

Employer exhausted all options

“The employer went through a very good process of identifying what were the actual inherent requirements of the job, and also provided the employee with an assistant for a period of time.”

A comprehensive independent medical assessment was also carried out, as well as a number of attempts to accommodate the worker, including reasonable efforts to relocate him and adjust the role.

“They really did exhaust all options to support the employee to continue employment,” says Nickels, adding: “Their decisions were made on very comprehensive medical information.”

The finding was that the employee had not been unfairly dismissed and the key learnings from this for HR, she says, is the absolute value in having a very comprehensive approach to managing employees who are suffering from illness or injury, which is impacting their ability to perform their role.

Privacy and sensitivity essential

Nickels acknowledges it can be difficult for employers needing to seek out medical information but emphasises that sensitivity is of priority.

“I always suggest to employers that they do need to approach these topics, sensitively and respectfully in terms of the employee’s privacy, certainly by restricting access to who's getting the information, and making sure the information is kept to the minimum that needs to be obtained for the employer’s purpose.

“So a full assessment of the employee's full medical history is not always relevant. Any assessment or information needs to be focused on exactly what is needed for the purpose, on the inherent requirements of the role, and certainly not distributed widely within the employer’s business.”

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