See no evil, hear no evil: Refusing requests to attend medical assessments

What you need to know

• An employer may have a common law right to give a lawful and reasonable direction to an employee to attend a medical assessment.  Such a direction must be within the scope of service of the employee and relate to an employee's fitness for work.
• Dismissing an employee for failing to follow a lawful and reasonable direction to attend a medical assessment will not breach the general protections provisions under the Fair Work Act, provided that the reasons for the decision do not include any prohibited reasons.  
• Employees may have a duty (that they can delegate) to communicate with their employer while on prolonged sick leave.
• Assessing fitness for work can be a complicated and fraught process, given the myriad of legal risks to which an employer is exposed. These risks include claims for discrimination, adverse action, unfair dismissal, worker's compensation and breach of contract. 

What you need to do

• Ensure that you manage ill and injured workers sensitively and proactively.  Stay in regular contact with them.
• Carefully consider each step in the management of ill or injured employees in light of the individual's circumstances – there is no "one size fits all" approach.
• When dismissing an ill or injured worker, ensure that the decision maker clearly articulates the reasons for the decision and does not take into account any unlawful considerations.  
• Consider the risks and seek legal advice before terminating an ill or injured employee's employment.

In our Employment Alert What's up, Doc? How to obtain and use an employee medical report, we discussed two cases that provided useful guidance for employers in obtaining, and using employee medical reports.

Two more recent cases have considered claims against employers who dismissed employees when they refused to follow a direction to attend a medical assessment. 

In Laviano v Fair Work Ombudsman [2017] FCCA 197, the employee brought a general protections claim against his former employer, after he was dismissed for failing to attend a medical assessment and failing to communicate with his employer during his extended absence from work due to a psychological condition.

Judge Altobelli dismissed the application, holding that the decision to terminate the employee's employment was not taken because of an unlawful reason.

In Grant v BHP Coal Pty Ltd [2017] FCAFC 42 the employee made an unfair dismissal claim when his employment was terminated for serious misconduct after he refused to attend a medical appointment that was to assess his fitness to return to work. The Full Court of the Federal Court concluded that the employer was entitled to dismiss the employee. 

Why didn't the employees attend the medical assessments?

In Laviano, the employee was absent from work for most of 2014 due to a psychological condition that he claimed was work-related.  

Between July and November 2014 the employer scheduled six medical assessments for the employee. The employee did not attend any of the assessments except one to which he arrived so late that the assessment could not proceed.

The employee did not communicate at all with his employer between 7 October 2014 and 22 December 2014. The employee had received medical advice from his treating doctor "not to open daily mail" and not to "contact the employer" in October 2014. However, the employee did not notify the employer that he would not be in contact until 15 December 2014.  

The employee was dismissed on 9 January 2015 for failing to attend the last scheduled medical assessment on 27 November 2014. The employer did not accept the employee's explanation that he did not attend the assessment based on medical advice, because he was on leave and because he was unaware of the assessment. The employer did not accept that the medical advice the employee had received relieved him from his duty to communicate with the employer.

The employee brought a general protections application in the Federal Circuit Court, arguing that the employer had taken adverse action against him either because of his disability or because of his workplace right to take personal leave. In addition, the employee claimed that the employer had indirectly discriminated against him because his disability meant that he could not comply with the requirement to attend a medical assessment (because he could not communicate with the employer to receive the direction).

In the Grant case, the employee was a boilermaker who wanted to return to work after taking extended sick leave related to a shoulder injury. He provided his employer with a GP's medical certificate which stated he was fit to return to work and his normal duties. This view was supported by the employee's orthopaedic surgeon.

However, the employer requested he see an occupational physician to gain further information about his ability to return to work without risk of re-injury.

After the employee refused to attend two appointments that he was directed to attend, he was dismissed on the basis of serious misconduct for failing to comply with lawful and reasonable directions.

Why could the employers insist on attending a medical assessment? 

In the Laviano case, Judge Altobelli accepted that the employer dismissed the employee because he failed to comply with the requirement to attend a medical assessment and not for any unlawful reason. Key to this finding was the Court's acceptance of the evidence given by the key witnesses of the employer about the reasons for the decision.

The Court did not accept the employee's stated reasons for not attending the medical assessment. His Honour held that: 

On the balance of probabilities, the employee knew about the medical assessment on 27 November 2014 but, for his own reasons, chose not to attend

The evidence did not support that the employee was unable to communicate with the employer between October and December 2014; and

The evidence did not establish that the employee's disability precluded him from attending the medical assessment.

The Court accepted that in the circumstances the employee had a delegable duty to communicate with the employer while on personal leave.  It was unreasonable for the employee to effectively "shut down" all communication with the employer and to rely on his self imposed ignorance in his subsequent general protections claim.  

His Honour held:  

"The Applicant is no more a victim of indirect discrimination than is a man who puts his hands over his ears so he cannot hear oral instructions, or a man who closes his eyes so that he cannot read written instructions." 

In the Grant case, Commissioner Spencer (at first instance), the FWC Full Bench (on appeal), Justice Collier (on judicial review)and the Full Federal Court (on further review) all held that the dismissal was not unfair and that it was lawful and reasonable for the employer to seek advice and further information to ensure that the employee was not exposing himself and others to an unacceptable level of risk.  

This was because the employer's direction was both reasonable and necessary in order to discharge its statutory obligations relating to occupational health and safety under section 39(1)(c) of the Coal Mining Safety and Health Act 1999 (Qld) (CMSH Act). The Full Federal Court held that while sections 39(1)(c) and 39(2)(d) the CMSH Act do not declare in express terms that coal mine workers may be required to undergo medical examinations, the legislature intended that they may be so directed if it is reasonable and necessary to ensure that anyone is not exposed to an unacceptable level of risk.

The FWC Full Bench had held that the Supreme Court of Queensland's decision in Edwards v North Goonyella Coal Mines Pty Ltd [2005] QSC 242 (which considered an employer's power to direct further medical tests pursuant to the CMSH Regulation or common law rights) did not stand for any proposition that denies an employer power to direct an employee to do such things that are not unlawful and which fall within the scope of the contract of employment in all of the circumstances. The relevant surrounding circumstances in the Grant case were the nature of the employee's medical history, the fact that he had surgery and rehabilitation, and that the medical information he provided was insufficient and did not focus on an occupational assessment. 

However, the Full Federal Court held that it was not necessary for it to consider the legality of an employer requiring an employer to undergo a medical examination against his or her will in the absence of legislative authority to do so. 

Implications

The decision in Laviano demonstrates the importance of taking a comprehensive and considered approach to managing ill and injured employees.  

This case is a reminder that successfully defending a general protections claim will turn on whether the court accepts the evidence of witnesses involved in the decision-making process.  

Where an employer is considering dismissing an ill or injured employee, the employer should clearly identify the decision maker and ensure that the decision maker does not take into account any unlawful considerations. 

The employer should clearly articulate the reasons for the decision in the termination letter and any internal correspondence concerning the termination should be consistent with the stated reasons. In Laviano, the Court accepted that the reasons set out in the termination letter were the only reasons for the termination.

In Laviano, the Court found it unnecessary to decide whether the discrimination contemplated by section 351 of the FW Act includes indirect discrimination or how the provisions would apply in a case of indirect discrimination. This issue is likely to arise in future cases.  

It is also important to note, as Judge Altobelli did several times in the decision, that since the case was brought as a general protections claim, the Court was not considering whether the termination was fair or reasonable. The only question for consideration was whether the reasons for the termination included an unlawful reason. Had the case been brought as an unfair dismissal claim, it is possible that the outcome would have been different. 

The Grant case did concern whether the dismissal was unfair. In that case, the employer's statutory obligations relating to occupational health and safety gave it the right to require the employee to attend a medical assessment.  

Authors: Marie-Claire Foley, Partner; Geoffrey Giudice, Consultant; Talia Firth, Senior Associate; Tamara Lutvey, Senior Associate; Amanda Wu, Lawyer