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Wrong direction? Sending employees to medical examinations

Wrong direction? Sending employees to medical examinations

Do you know when you can – and when you cannot – issue an employee with a direction to attend a medical examination?

The right for an employer to direct an employee to attend a medical examination is not always reasonable or warranted in the circumstances, and the recent Fair Work Commission case of Cole v PQ Australia Pty Ltd t/a PQ Australia provides useful guidance for employers on when such a direction will be reasonable and valid.

Background

The employee was employed with PQ Australia as a packer on night shift.

On 14 June 2015, the employee was absent from work for 1 day’s personal leave (for which he provided a medical certificate). On the same day, the employee was stood down with pay by PQ Australia.

In standing down the employee, PQ Australia stated to the employee that he “did not seem to be coping very well at work and we are concerned for your welfare.”

Three days after standing him down, PQ Australia sent the employee a letter which stated: “The reason that we have directed you not to attend for work until further notice is that a number of issues have arisen in the workplace over the last few months which have involved or affected you and we are concerned about the impact these issues have had on you and on others.”

But what were the issues? Over the prior months, the employee had made a number of complaints to his manager about his work and colleagues, including that:

  • another employee was failing to complete tasks prior to the end of their shift
  • he was having difficulty keeping up with the rate at which boxes had to be packed (which had recently been increased)
  • he had concerns he may have been the subject of bullying treatment by colleagues (including that a noose had been hung over his work station on two occasions), after his colleagues became aware he was suffering from, and being treated for, depression

The employee did not receive any further explanation from his employer, until a meeting on 24 June, when he was advised that:

  • he could not return to work until he attended a medical examination by a doctor nominated by PQ Australia; and
  • the employer was concerned that he was “having problems from time to time maintaining an effective working relationship with some of your work colleagues.”

The employee indicated to PQ Australia, including through his union representative, that he did not wish to attend the appointment.

The employee failed to attend the appointment, and on 3 July 2015 was stood down without pay.

The employee subsequently received a letter which stated 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.

Issues

The Commission identified that the central issue in the case was whether the dismissal was for a valid reason. This required consideration of the following questions:

  1. Was it reasonable for the employer to require the employee to attend a medical examination by a practitioner selected by the company to assess his fitness for work, prior to allowing him to return to work; and
  2. Did the failure of the employee to agree to attend the medical examination constitute a valid reason for dismissal.

The Commission’s answer to both questions was a resounding ‘No’.

Where did they go wrong?

The Commission helpfully identified a number of matters which needed to be considered to determine whether PQ Australia’s requirement that the employee attend a medical examination was reasonable:

  1. 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?
  2. Had the employee provided adequate medical information which explained absences and demonstrated fitness to perform duties?
  3. Was the industry or workplace particularly dangerous or risky?
  4. Were there legitimate concerns that the employee’s illness would impact on others in the workplace?
  5. Did the employee agree to the assessment by the medical practitioner selected by the employer?
  6. Was the employee advised of the details of the conduct which led to the concerns that he was not fit for duty?
  7. 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?
  8. Was the employee advised of the matters to be put before the medical practitioner for his assessment?
  9. Was the medical assessment truly aimed at determining, independently, whether the employee was fit for work?

In the case, 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, stating:

“Absent other evidence, there is no reason to conclude that a person is incapable of performing work as a packer whilst suffering from a depressive illness particularly when the employer is aware that the person is receiving treatment for the illness from a medical practitioner.”

Accordingly, there was therefore no valid basis for PQ Australia’s dismissal of the employee, and he was awarded total compensation of $45,907.82.

The Take-Away

The matters identified by the Commission provide useful guidance on the questions employers should always ask when dealing with an employee who is, or may be, suffering from an injury or illness – let’s call them the ‘Reasonableness Steps’.

If you haven’t followed the Reasonableness Steps in dealing with an ill or injured employee, any action you may take afterwards, such as sending an employee to a medical examination, standing the employee down or terminating their employment, may not be valid, and you could be left with a significant compensation bill. (See also the disability discrimination case of Watt v Australian Postal Corporation [2014], where a direction to an ill employee not to attend work resulted in a general damages bill of $10,000).

It is recommended that employers seek advice on how best to manage an ill or injured employee in the workplace before they commence any process. Our Workplace Relations and Safety team at Holding Redlich are experts in navigating the management of ill and injured employees in the workplace and can prepare strategies and processes for employers to follow to lessen the risks.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader’s specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

 

source: http://www.mondaq.com/australia/x/505122/Health+Safety/Wrong+direction+Sending+employees+to+medical+examinations

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