Work Health and Safety

Dealing with Ill and Injured Employees: Independent Medical Examinations – Do Employers Have the Right to a Second Opinion?

It might surprise some of our readers but one of the most difficult employment issues for any employer to deal with, is a long term ill or injured employee. There is a significant amount of confusion and lack of understanding regarding the rights of both the employee and the employer in these circumstances. Most employers want to do the right thing when it comes to dealing with employees who are ill or injured and are unable to return to full time pre-injury employment, but need to balance the interests of the employee with the needs of the business.

In most circumstances, the employer is not concerned about the employee feigning a health issue, rather that the employee’s continued absence is usually having a significant impact on the operational efficiency and productive capacity of the workplace. In addition, in almost all cases, the employer has little to no information about the employee’s medical condition, diagnosis and whether or when they will be fit to return to work. There are some circumstances, however, where employees do “use” illness to deal with difficult workplace issues and this too can create immense problems for employers.

There are numerous legislative requirements when considering this issue. For starters, the Fair Work Act 2009 (Cth) (FW Act) prohibits the termination of an employee’s employment if that employee has been ill or absent due to an injury for a period of less than 3 months or, over the course of a 6 month period, the absences together have been less than 3 months. However, even if the employee has been absent for in excess of the 3 month period, great caution should be exercised by any employer wishing to terminate that employee’s employment as the employee may well be entitled to commence proceedings for breach of the General Protection Provisions of the FW Act, or commence proceedings for discrimination under the Federal or State anti-discrimination legislation. In addition, most States and Territories in Australia have workers’ compensation laws which prohibit the termination of employment in circumstances where the illness or injury is a workplace illness or injury and allow an employee whose employment was terminated within the first 6 months of injury or illness to apply to be re-instated. In NSW the employee may make the application up to 2 years from the date of termination.

Given the serious legal ramifications for employers regarding the treatment of ill or injured workers, employers are advised to develop a proper and considered strategy in dealing with these issues. In this regard, the stating place is to ascertain whether the employee has suffered a compensable workplace illness or injury, or whether the illness or injury is unrelated to their employment. If the illness or injury is in fact a workplace illness or injury, then the employer (if the employee is in NSW) cannot take any steps to terminate employment within the first 6 months of employment. Similar provisions apply in the other States and Territories of Australia.

Regardless of whether an employee has a compensable workplace injury or not, employers have a work health and safety obligation to ensure that employees are fit and able to work. In this regard, it may be important and necessary for employers to obtain independent medical advice regarding the employee’s competence and ability to work. The need for an independent medical assessment may also arise in the following circumstances:

  • where an employee does not have a workplace injury but is unable to perform their duties for an extended period;
  • where an employee has a workplace injury but has been off work for more than 6 months; and
  • where an injured or ill employee seeks to return to work and the employer has concerns regarding their ability to do so; and
  • where the employer seeks to terminate the employment on the grounds that the employee is unable to fulfil the inherent requirements of the role.

Employers can, where it is reasonable and warranted by the circumstances, direct an employee to attend a medical examination albeit such a direction should be used sparingly and only where necessary. In a recent decision of the Fair Work Commission in Cole v PQ Australia Pty Ltd t/a PQ (“Cole”), it was found that the employer’s direction to Mr Cole to attend an independent medical examination was invalid.

In Cole, the employee was employed by PQ Australia as a night shift worker performing work as a Packer. On 14 June 2015, Mr Cole was absent from work for 1 day’s personal leave for which he provided a medical certificate. The employee was stood down until further notice without pay by PQ. His employer informed him that he did not seem to be “coping well” at work and that PQ has concerned for his welfare. The employee was then informed that a number of issues had arisen in the workplace which involved or affected Mr Cole, and that PQ was concerned about the impact these issues had on Mr Cole and his co-workers. PQ did not elaborate on the nature of the alleged issues, however, in the proceedings it was evident that Mr Cole had raised a number of complaints to his manger regarding his work and other colleagues.

On 24 June 2015, Mr Cole was advised that he could not return to work for PQ until he attended a medical assessment by a doctor nominated by PQ. Mr Cole, through his union representative, informed PQ that he did not wish to attend the proposed medical appointment. On 3 July 2015, Mr Cole did not attend the medical appointment, and PQ continued his suspension without pay as a result. On 23 July 2015, Mr Cole received a letter that his employment was being terminated on the basis that he failed to comply with a lawful direction to attend an independent medical examination.

The key issue identified by the Fair Work Commission in Cole was whether it was reasonable for PQ to require him to attend the independent medical examination by a health practitioner of its choosing to assess his fitness for work, prior to allowing him to return to duty. The second issue was whether the failure by Mr Cole to attend the appointment amounted to a valid reason for dismissal. The Fair Work Commission found in the negative in relation to both issues.

While in some circumstances it may be reasonable to require and direct an employee to attend an independent medical examination, the Fair Work Commission was of the view that PQ did not satisfy the relevant considerations, namely:

  • whether there was there a genuine indication of the need for the medical examination, such as prolonged absences from work, or absences without explanation, or evidence of a disability which related to the capacity to perform the inherent requirements of the job;
  • whether the employee provided adequate medical information which explained the absence and demonstrated fitness to perform duties;
  • whether the employee’s occupation or workplace was particularly dangerous or risky;
  • whether there were any legitimate concerns that the employee’s illness would impact others in the workplace;
  • whether the employee consented to an assessment by an independent medical practitioner;
  • whether the medical practitioner was advised of the issues of concern, and where those matters part of the inherent requirements of the job;
  • whether the employee was advised of the matters to be put to the independent medical practitioner prior to the examination; and
  • whether the medical examination was on an overall basis truly aimed at determining, independently, whether the employee was fit for work.

In Cole, the Commission found against PQ in almost all instances, and found that the dismissal of Mr Cole was invalid and without a proper basis. As a result, Mr Cole was awarded compensation in the vicinity of $46,000.

The decision in Cole is instructive in relation to the circumstances where an independent medical assessment is warranted. In such circumstances, failure by an employee to attend such an assessment would amount to a failure to abide by a lawful direction.

Although in some cases, it may be completely reasonable to direct that an employee, who has been absent from work through illness, to attend an independent medical examination, as is consistent with an employer’s duty of care and obligations under work health and safety legislation, the employer ought to take careful reasonable steps in dealing with an employee suffering from an injury, disability or illness. Certainly, taking detrimental action against the employee, such as suspending or terminating them, without proper and considered medical advice will expose the employer to significant legal risks.

It is highly recommended that employers seek advice on the most appropriate and health-sensitive way to manage an ill or injured worker before commencing any kind of process to review the employee’s suitability for the job. In next week’s alert we will discuss the practical steps an employer should take in dealing with these issues. We regularly advise employers on dealing with long-term absent workers and can provide strategies to ensure that your business continues to operate with as little disruption as possible.

If you wish to discuss any aspect of this article or require specialist advice or assistance in relation to an employment law issue, please do not hesitate to contact us.

This alert is not intended to constitute, and should not be treated as, legal advice.

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