An employee’s temporary absence from work is seldom problematic for employers. Section 352 of the Fair Work Act 2009 (Cth) specifies that employment should not be terminated on the basis of temporary absence from work because of personal illness or personal injury. Managing employees that are absent from the workplace for extended periods due to a personal physical or mental illness or personal injury can, however, be challenging for employers due to the complex balance between managerial prerogative and the employer’s capacity to manage its workforce, on the one hand, and concerns about unlawful discrimination, on the other.
Sometimes an employee affected by a medical condition or illness takes paid personal leave, commonly described as “sick leave”, prior to extended unpaid leave in situations where he or she is unable to return to work. The employee may provide his/her employer with evidence in the form of a medical certificate from a registered medical practitioner stating that he or she is unfit for work for a specified period and anticipated to be fit to return to work on a particular date. But if one medical certificate referring to a period of leave due to an unspecified medical condition or illness is followed by another medical certificate, then another, resulting in the employee’s extended absence from work, rather than temporary absence, for an unspecified medical condition or illness, things can become more complex for an employer.
Can the employer reasonably direct the employee to undergo a medical examination by the employer’s nominated registered medical practitioner? When will it be reasonable for an employer to direct its employee to undergo a medical examination? How thorough can that medical examination be? The answer to these questions is that it depends on the nature of the employment and the facts, but there is legal authority, namely Australia judicial decisions, that may assist an employer to direct an employee to undergo a medical examination in many instances, including situations involving an employee’s prolonged absence from the workplace or during the recruitment and selection of an employee prior to the employee commencing employment.
In some instances, the employer’s right to require an employee to undergo a medical examination is a contractual right specified in a common law contract of employment. What happens if the written employment agreement does not mention the employer’s rights in the context of managing an employee’s absence from work due to physical or mental medical illness or condition? Will the employer’s right to require the employee undergo a medical examination or produce detailed medical evidence to explain an extended absence from work, prognosis for return to work and any accommodations be implied? What happens if there is no written contract of employment because the agreement is verbal? These are the sorts of questions employers may seek clarity about.
An employee may be reluctant to undergo a medical examination by his or her employer’s nominated medical practitioner if he or she feels that it is an unnecessary or unsatisfactory invasion of his or her privacy. The employee may also be concerned about producing evidence of the nature of a physical or mental medical condition. The Federal Court of Australia case of Australian and International Pilots Association v Qantas Airways Ltd  FCA 32 is one case involving the legal issues of the meaning of a “workplace right”, unfitness for duty, implied contractual terms, and the meaning of “adverse action” in section 340(1) of the Fair Work Act 2009. The case involved a situation where the employer, Qantas, was accepted as having a legitimate expectation of being able to require its employees to submit to medical examinations in order to establish their capacity to return to work safely.
Managing an employee’s extended absence from work due to personal illness or personal injury can be more legally complex because the employer may be concerned that the absent employee might commence a general protections non-dismissal dispute application or, in the context of termination, a general protections dismissal dispute application. Cases involving section 351 of the Fair Work Act 2009, for example Pavolvich v Atlantic Contractors Pty Ltd  FMCA 1080 and Stevens v Australian Postal Corporation (2011) 207 IR 405, have confirmed that termination of employment on the basis of sickness may be discriminatory, resulting in orders that the employer pay the dismissed employee pecuniary penalties. Another risk that employers may be aware of when an employee is absent from work due to illness or injury may be the risk that the employee will commence a complaint with the Australian Human Rights Commission (AHRC) alleging unlawful disability discrimination during employment.
National system employees have a statutory entitlement to ten days paid personal leave or carer’s leave each year (pro rata) pursuant to section 96 of the Fair Work Act 2009 (Cth). The entitlement to paid personal/carer’s leave is an entitlement to paid sick leave in situations where the employee “is not fit for work because of a personal illness, or personal injury, affecting the employee”. Employers should recognise that an employee’s paid personal/carer’s leave entitlement specified in Part 2-2, Division 7, of the Fair Work Act 2009 (Cth) can be legally complex. There is a delicate and frequently challenging balance between the employer’s need to manage its workforce and the employee’s right to protection from unlawful discrimination.
When managing an employee’s extended absence from the workplace due to a personal illness or personal injury an employer may seek to have the employee submit to a medical examination or to have the employee provide medical evidence of the nature and severity of the illness or condition, the prognosis for recovery and return to work, plus any accommodation that may be required to assist the employee to transition back to work. In the recruitment and selection stage preceding the employee’s service with the employer, the employer may require the employee to undergo a medical examination as a pre-condition or condition precedent to employment and this process has become relatively standard in the some industries. Examples include the defence industry, where employees must be fit for service involving potential rapid deployment to remote destinations, the aviation industry, where pilots and their teams of employees are responsible for getting travelling commuters to their flight destinations safely, and the mining and resources industry, where employees may be required to operate potentially dangerous equipment, relocate to offshore and remote work site locations with limited access to medical and dental services. Cases such as Australian and International Pilots Association v Qantas Airways Ltd [2014 FCA 32 demonstrate that employers may have a right to require a sick employee to provide it with information in situations of extended sick leave.
About the authors:
Kate Bretherton is a Perth lawyer and an Associate at Lynn & Brown Lawyers. Kate practices in the area of commercial law and employment law. She is currently completing a PhD at UWA. Steven is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in commercial law, dispute resolution and estate planning.