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In the last quarter of 2019, The Workplace is shining a spotlight on managing ill and injured workers.
This blog is the first of a three-part series into some of the firm’s most frequently asked questions.
In this first instalment, we explore the above question which, unsurprisingly, does not always have a simple answer.
When is a direction lawful and reasonable?
The first thing to consider is whether the request to provide medical information or attend an IME would be a lawful and reasonable direction.
For a direction to be lawful and reasonable, an employer must establish a genuine need for the information. This may arise, for example, where:
the employer has reasonable concerns for the employee’s health and safety or the safety of others[1];
the employer is required to affirm an employee’s fitness to work after an extended absence[2]; or
there is otherwise a need for the information (for example, because of the general nature of medical reports previously provided by an employee[3]).
The direction must also be reasonable, meaning that the information should be directed to the inherent requirements of an employee’s job[4] and the assessment should be held at a reasonable time and location, having regard to the employee’s circumstances and nature of the medical condition[5].
Approach to seeking medical information
So, what does this mean in the context of your business and what steps should you take in matters like this?
In most cases, the following steps are essential in the lead up to directing an employee to provide medical information or attend an IME:
Step 1 – Determine the inherent requirements. This first step is often crucial to showing there is a genuine need for the information to be sought and a reasonable basis for the direction. The inherent requirements of a job are the essential activities that must be carried out to fulfil the purpose of an employee’s position[6]. The job description for the role is often a good place to start in an inherent requirements assessment, but the task does not stop there[7].
Step 2 – Prepare the request for information. The employer’s request for information must be carefully considered by reference to the inherent requirements and any surrounding circumstances relevant to the doctor’s consideration.
Step 3 – Discuss the process and obtain consent. The final step is to ideally have a discussion with the employee in relation to the proposed course of action (subject to their medical condition and ability to attend for a meeting or have a discussion by phone). In some cases, an employee may agree to the next steps and sign a consent form in which case you will be able to send the request for information to the doctor. In other matters, the meeting may be more contentious and require a formal direction to provide information in writing.
What happens next?
Stay tuned for the next blog posts in the series. In these blogs, we will consider what happens next in managing ill and injured workers including the following topics:
how to assess employee medical information, including dealing with conflicting opinions; and
when a failure to follow a lawful and reasonable direction constitutes a valid reason for dismissal.
Interested in learning more or not sure what to do?
Please give us a call on 02 8226 8535 or email hannah@theworkplacelawyers.com.au, kim@theworkplacelawyers.com.au or alina@theworkplacelawyers.com.au if you need assistance with managing ill and injured workers.
The copyright in this blog is owned by The Workplace – Employment Lawyers Pty Ltd. The content is general information only and is not intended to constitute, or be relied upon as, legal advice. The use of this blog by any person or company does not create any solicitor-client relationship between the person or company and The Workplace – Employment Lawyers Pty Ltd.
[1] See, for example: Zadeh v Woolworths Ltd [2015] FWC 1791 (request to seek a second medical opinion due to safety concerns arising from a series of “worrying complaints” made by an employee to management); and Bletas v The Star Entertainment Qld Limited [2019] FWC 2792 (direction to attend IME following a number of “concerning behaviours” displayed by an employee).
[2] See, for example: Columbine v The GEO Group Australia Pty Ltd [2014] FWC 6604 (request for information made after a marked change in a Correctional Officer’s fitness for work following hip and shoulder injuries); and Re Krcho [2019] FWC 5278 (direction to attend an IME where the employee claimed he was fit for work contrary to a medical opinion).
[3] See, for example: Ingall v Virgin Australia Airlines Pty Ltd [2019] FWC 4947 (request for information following an extended absence during which the employee failed to provide information about the nature of his medical condition); and Grant v BHP Coal Pty Ltd [2014] FWCFB 3027; [2017] FCAFC 42 (direction to attend a medical appointment for a functional assessment as employer not satisfied of fitness based on generalised medical reports and lengthy absence from work).
[4] See, for example: Transport Workers’ Union of Australia v Cement Australia Pty Ltd [2015] FWC 158 (direction to provide medical information unreasonable where based on general injury statistics rather then specific factual concerns associated with individual employees being able to perform the inherent requirements of their jobs).
[5] Note, however, that a direction will not be unreasonable just because it is a non-preferred option of the employee: Ingall v Virgin Australia Airlines Pty Ltd at [99].
[6] See J Boag and Son Brewing Pty Ltd v Button [2010] FWAFB 4022 and the authorities referred to in that decision.
[7] See, for example: Martin v TNT Australia Pty Ltd [2017] FWC 440 (upheld on appeal), in which the FWC considered documentary evidence, including the employer’s policies and procedures, as well as oral evidence provided by various managers in the proceedings.