https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc4947.htm

A well-worded contract of employment and policies coupled with a fair (I would call “very patient”) process supported the ex-employer’s case. This decision all sets out the rights of an employer to have an employee attend a medical to determine whether they are fit to carry out the “inherent requirements of the job”.

Background

The Applicant had been employed by the Respondent as Pit Crew/Ground Crew at Brisbane Airport since on or about 16 April 2012. The Applicant commenced personal leave on 1 March 2016 and never returned to work. The Respondent submitted that the Applicant did not at any time, on or after 1 March 2016, provide information in relation to the nature of his medical condition or when he was likely to be able to return to work.

On 15 August 2016, the Respondent sent the Applicant a letter which required him to attend an IMA on 7 September 2016. This was the first of many attempts that the respondent arranged for the applicant to attend medicals at various locations and offering to meet his travel costs.

Issues

The applicant would find excuses and obstacles that would prevent his attendance at the medicals. One major item being that he chose only to communicate mile postal (“snail”) mail. The Commissioner found that this was an unreasonable request as he had sent some 300 emails using his work email in the past.

In terms of the impediment that the applicant was located about 45 minutes from the medical location; the Commissioner found that (as previously mentioned) as the respondent had offered to pay for the travel, this was not a relevant reason for non-attendance.

Findings

In ultimately dismissing the application, the Commissioner found the respondent had acted fairly and had a valid reason to terminate the applicant’s employment because:

  • The applicant was sent an email which stated:

“… if you do not attend the assessment, [we] will consider your non-attendance to be a failure to comply with a lawful direction of [the respondent] which may result in disciplinary action up to and including termination of your employment. Further, [the respondent] will be required to assess your ability to perform the role, and determine [the respondent’s] obligations, based on the information currently available to it…”

  • The letter also invited the Applicant to attend a meeting at the Respondent’s Brisbane Airport Management Office and stated that the Applicant was entitled to bring a support person or representative of his choice to this meeting.
  • Following the applicant’s non-response to the “show cause” letter; the respondent sent the applicant a letter of termination, stating (reason for the dismissal):

“A. failing to comply with a reasonable and lawful direction to attend an independent medical assessment and this behaviour was in breach of contract of employment and relevant [the respondent] policies and procedures; and

  1. given that the applicant has been absent from work for approximately 10 months, based on the medical information that [the respondent] has, [the respondent] considers that the Applicant is unlikely to be able to return to work in the foreseeable future and therefore is no longer able to perform the inherent requirements of his role”. [My emphasis].

  • There was an expressed term within the employment contract can give rise to this entitlement:

“If [the respondent] has any concerns about your capacity to perform your duties due to illness or injury, or [the respondent] considers in the circumstances it appropriate to ensure compliance with its workplace health and safety obligations, you must if requested [the respondent]:

Sign an authority authorising [the respondent] to seek from and/or provide to any treating health care professional, or relevant insurer (including workers compensation and any disability insurer) information about your medical condition or any past medical condition relating to your work;

Attend and cooperate during an examination by a medical practitioner nominated by [the respondent].”

  • An employer’s right to require the provision of a medical report may be accompanied by a right to choose the medical practitioner who will provide the report, as in Grant v BHP Coal Pty Ltd [2014] FWC 1712.
  • The Respondent argued that whilst taking personal leave is a workplace right; there is no workplace right to refuse to comply with lawful and reasonable directions while on personal leave. This means that there is no workplace right to refuse to attend a medical where an employee is lawfully and reasonably directed to do so while on personal leave, per Swanson v Monash Health [2018] FCCA 538.
  • It is generally acknowledged that employees have an obligation to obey lawful and reasonable directions from the employer and failing to do so may constitute grounds for termination.
  • It was common ground between the parties that the Respondent had the power under the contract of employment to direct the Applicant to attend a medical (and therefore) the directions were lawful directions. The directions were relevant and essential to the Respondent’s ability to determine whether or not the Applicant would be capable of fulfilling the inherent requirement of his role.
  • The questions for consideration in relation to the direction are:
    • a) was the direction to attend the IMA reasonable?
    • b) if it was reasonable, was it a valid reason for dismissal?
  • The Respondent pointed to the matter of Blackadder v Ramsey Butchering Services Pty Ltd for guidance on the question of the reasonableness of a direction to attend a medical. That case confirmed the proposition that “an employer should, where there is a genuine indication of a need for it…be able to require an employee, on reasonable terms, to attend a medical examination to confirm his or her fitness”.
  • This position is supported by the Respondent’s correspondence to the Applicant on 15 August 2016 stating:

“Given that it is unclear to us when you may be able to return to work, we require you to attend an independent medical assessment to better understand the nature of the injury and/or illness that has prevented you from performing your role, and whether or not your will be fit to attend work in the near future.”

  • The Respondent identified case law that supported its contention that the Applicant was required to be contactable and communicate with [the respondent] during his absence and that the Applicant had an implied contractual duty to cooperate with his employer to meet the requirements of his employment. Further it was submitted that the Applicant was under a contractual duty to cooperate with [the respondent] in relation to issues concerning his employment and in relation to managing health issues.
  • Returning to the method of communication chose by the applicant, the Commissioner agreed with the proposition advanced by the Respondent, in accordance with the reasons in Laviano v Fair Work Ombudsman that the Applicant unreasonably chose to adopt an impractical method of communications and now seeks to use his ignorance of his employer’s communications “not even as a shield but as a sword, in the present proceedings.”
  • Further, the Commissioner found that it was the Applicant’s responsibility to check his emails.
  • That the failure to attend a medical in circumstances in which the Applicant had significant time off work and provided little detail about the nature or likely continuation of his condition is a valid reason for dismissal.

Inability to undertake the inherent requirement of the employment

The Respondent advanced the position that there was a lack of information contained in the medical certificates provided by the Applicant, particularly:

  • the specific nature of the injury or illness;
  • the likely length of his absence; or
  • proposals as to adjustments to duties or working environment to allow his return.

In Cole v PQ Australia Ltd T/A PQ Australia it was said that:

“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.”

The Applicant’s conduct in providing medical certificates that evidenced his inability to work but did not provide details as to why, created a reason to conclude he was incapable of performing the inherent requirements of his role for an unidentified period of time.

This is based on the Applicant’s own information and considering his resistance in obtaining a medical which would have supported the Applicant if he was in fact able to undertake the inherent requirements of the role (in relation to his capacity) was a sound, defensible and well-founded reason.