Tuesday, 8 July 2014

Extended Sick Leave and Company Nominated Doctors

In a decision which will be welcomed by many employers, the Fair Work Commission has found that an employer may be able to direct an employee on extended sick leave to attend an appointment with a company nominated doctor to determine the employee’s fitness for duty. The failure by an employee to comply with such a direction may lead to disciplinary action including dismissal. It was also found that there may be an implied right for an employer to request more detailed medical evidence from a long-term sick employee than that contained in a basic medical certificate. Another recent case has confirmed an employer’s right to request a written report from a sick employee’s doctor indicating the diagnosis, prognosis, capacity to return to pre-injury duties and the anticipated timeframe.

Employer’s right to direct employee to attend nominated doctor

The Full Bench of the Fair Work Commission (FWC) confirmed that it was lawful and reasonable for BHP Coal Pty Ltd, to direct a boilermaker to attend its nominated medical specialist for an assessment before being assigned duties on his return to work. The employee refused to attend the appointment. He then failed to participate in a disciplinary interview and had his employment terminated.

It was found that the employer’s direction to attend the company’s doctor was reasonable in the circumstance given:

  • The employee’s lengthy absence from the workplace;
  • His shoulder surgery;
  • The generalised nature of his medical certificates (which did not refer to surgery or any rehabilitation); and
  • The heavy manual tasks involved in his role

The Full Bench also found that the employer had a valid reason to terminate the employee, namely:

  • His unwillingness to attend an initial and then a rescheduled medical appointment with the employer’s nominated doctor, despite being warned about the prospect of disciplinary action; and
  • The employee disrupting and delaying the disciplinary interview by refusing to answer questions and requiring written questions rather than participating in an interview

Employer’s right to request medical evidence beyond basic medical certificate

In another recent case, the Federal Court rejected the Australian and International Pilots Association’s claim that Qantas had taken adverse action against a pilot who had been on extended sick leave. The pilot had provided basic medical certificates setting out that he was suffering clinical depression and was unfit for work.

Qantas wrote to the pilot requiring him to provide a written report from his doctor indicating his diagnosis, prognosis, capacity to return to his pre-injury duties and the anticipated timeframe. Qantas also required the pilot to attend a meeting to discuss the report. Following the pilot’s failure to comply, Qantas wrote to the pilot and made it clear that it was considering disciplinary action including termination of his employment.

The Federal Court held that:

  • Qantas did not take adverse action by threatening to discipline the pilot for failing to provide further medical evidence; and
  • The employer must be able to obtain appropriate medical information to determine whether its workplace has been the cause of the employee’s condition and to remedy it

What this means for you

These cases highlight the following:

  • Where you have an employee on extended sick leave you are able to direct the employee to attend an appointment with a company nominated doctor (provided the request is reasonable in the circumstances)
  • You are also able to request more detailed medical evidence from an employee on extended sick leave then that contained in a basic medical certificate in order to comply with your health and safety obligations and to manage the impact on your business
  • To avoid doubt, we recommend inserting the rights of the employer as set out above into the employment contract.
    Employers in similar situations are encouraged to contact HR Legal for assistance

This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.

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