A case late last year in the Western Australian Industrial Relations Commission (IR Commission) has highlighted some of the sensitivities involved when directing employees to be independently medically assessed.
Trevor Walley (Mr Walley), an Indigenous employee, had over 45 years’ service with the Department of Biodiversity, Conservation and Attractions (the Department).
In 2000, while patrolling land as part of his work duties, Mr Walley discovered a deceased body. He was subsequently diagnosed with post‑traumatic stress disorder and in 2002 was successful in his workers’ compensation claim. His condition meant that he had intermittent periods of incapacity, and as a result he required medical treatment.
Initial medical assessments
From the period 2002 – 2019, he was certified as unfit for approximately 2.5 years. Between the period March 2017 – January 2019, he was only fit and in attendance at work for 3 months.
During this latter period, Mr Walley had assessments by a Neuropsychologist and a Psychiatrist, in 2017 and 2109 respectively. At first he was found to be capable of restricted duties but subsequently found to “probably [have] full capacity to return to work with full capacity in the present, observing the restrictions specified, but I cannot exclude the possible risk of a PTSD recurrence”.
The 2017 assessment made a comment about further medical investigations to assist with Mr Walley’s employability. However, it did not recommend a further neurological assessment.
The 2019 assessment made reference to this 2017 comment – but fell short of recommending the further neurological assessments take place.
Despite the 2019 assessment finding no concerns about Mr Walley’s cognitive functioning, and making no reference to a referral for a neurological assessment, the Department misunderstood the report to mean that a further medical assessment was required.
Medical assessment – Neurologist
The Department directed Mr Walley attend a further assessment with a Neurologist in July 2019, which he initially refused as it was not necessary or reasonable.
However, he did attend a re-scheduled appointment. Upon arrival at this appointment, he was requested to complete a medical consent form to allow access to results and information from other practitioners, and to agree to having tests and examinations. Mr Walley forwarded the consent form to his union representative, who discouraged him from signing it, on the basis that it was too broad.
In the meantime, Mr Walley was informed that he would have tests including shining a light in his eyes, having a device to scan his brain and having electrical wires to pass current through his body. Mr Walley was concerned about his physical and spiritual wellbeing, and consequently abandoned the appointment.
Termination
In August 2019, Mr Walley was informed that he was suspected of committing misconduct for failing to undergo the neurological assessment and his refusal to sign the consent form.
The Department terminated Mr Walley’s employment in January 2020 with immediate effect, and paid him lieu of notice.
Decision of the IR Commission
The IR Commission found that requirement to undergo the latest assessment by the Neurologist was unreasonable. The report by the Psychiatrist had not recommended a further assessment of fitness for work nor an assessment by a Neurologist. In fact, the Psychiatrist report indicated that Mr Walley was “in the present” fit for work. As such, the request did not comply with the requirement for sensitivity and respect for privacy.
Mr Walley had questioned the requirement to attend the Neurological assessment based on cultural considerations. In response, the IR Commission said:
“…it is incumbent upon employers to ensure that employees can participate in medical assessments in an informed and empowered way. To meet this requirement, consideration must be given to employees’ cultural and religious practices and beliefs. This is particularly so where the employer is a government agency and the employee is an Aboriginal person, against a history of colonial Government control over Aboriginal people and their bodies.”
Given it was not reasonable for the Department to require Mr Walley to attend the medical assessment, it followed that his non-attendance at the assessment could not constitute misconduct, nor be grounds for termination.
In relation to Mr Walley’s refusal to sign the consent form, the IR Commission found that the Department had not discharged its onus of establishing the consent form was a necessary requirement for the assessment to proceed.
As such, the IR Commission overturned Mr Walley’s dismissal.
Considerations for employers when directing employees to attend independent assessments
Case law has confirmed that there can be an implied term of an employment contract that allows an employer to require an employee to attend an independent assessment in circumstances that are reasonable.
For example, in the case of Swanson v Monash Health, the Federal Circuit Court of Australia found that the reasonableness of such a requirement would always be a question of fact, but that the implied contractual right was derived from the obligations imposed on employers by state based Work Health and Safety legislation, where employers are required to provide a working environment that is safe and without risk to health.
The case of Mr Walley and the Department demonstrates that there may also be broader considerations when requiring employees to attend independent assessments, which will go to the reasonableness of the requirement.
However, provided the assessment is legitimately required and is directed at ensuring an employee’s fitness for, and safety at, work, such direction should be lawful.
In addition, employers should consider having robust provisions in employment contracts and fitness for work policies reflecting that such directions may be made to ensure the employee’s fitness for work.
If you have any questions regarding independent assessments, you can contact a member of the HR Legal team to discuss further.
CASES
Trevor Walley v Director General, Department of Biodiversity, Conservation and Attractions [2021] WAIRC 569 (9 November 2021)
Swanson v Monash Health [2018] FCCA 538
