Dealing with injured employees when evidence of their capacity to safely return is light

  • 24 Apr 2017
Key Points
  • Employers have an implied right to provide reasonable and lawful directions to their employees. The courts have accepted that in some circumstances this extends to a right to direct an employee to provide further information about an injury or condition or to attend a medical assessment.
  • An employer may rely on an employee’s failure to comply with such a direction to justify disciplinary action up to and including dismissal but in making such decisions advice should be sought regarding the risks of an unfair dismissal, adverse action or discrimination claim being brought.
  • Employees also have an implied duty to communicate with employers even when they are absent due to illness or injury.

A prudent employer, faced with an employee who has taken leave due to an illness or injury and wants to return to work, should consider what information it needs to be satisfied the employee can safely return to work.  This can prove difficult if the employee is non-communicative, refuses to provide information about the injury or condition beyond generic medical certificates or does not attend medical assessments.

Two recent decisions shed light on what steps employers can take if the employee is unreasonably obstructive.  Both decisions concerned employees dismissed for failing to attend a medical assessment; one employee refused altogether and another alleged he was not aware of the appointment because of medical advice not to read correspondence from the employer.

The first decision (Grant v BHP Coal Pty Ltd [2017] FCAFC 42) was the culmination of a long running unfair dismissal claim relating to a Queensland coal mine boilermaker, Grant, who refused to attend a medical assessment or answer interview questions from his employer, BHP, following an extended absence.

Grant had an initial work related shoulder injury in October 2011 which was aggravated out of work in July 2012 and required surgery in September 2012. In March 2013 Grant sought to return to work and provided certificates from his GP and orthopaedic surgeon stating he was fit to return to duties from April 2013. BHP was not satisfied it had enough information about Grant’s limitations and capacity so it directed Grant to attend an appointment with its specialist. Grant initially refused to attend and, when warned that failure to follow this direction may result in his employment being terminated, attempted to create a reason for re-scheduling (not having scans despite these not being required). BHP sought to investigate the non-attendance but Grant asserted at interview he would only answer written questions.

Grant was later asked to show cause as to why his employment should not be terminated for failure to follow the direction to attend the medical assessment and failure to answer questions at the interview.  Grant argued he did not have to follow the direction to attend the medical assessment as the direction was unlawful and unreasonable. Unsatisfied with these answers, BHP terminated Grant’s employment.

Grant filed an unfair dismissal claim in the Fair Work Commission. His arguments included that he had a fundamental right not to attend a medical examination against his will.  BHP argued that it had an overriding duty to ensure it took reasonable and necessary actions to ensure Grant was not exposed to an unacceptable level of risk. It pointed to provisions in the Coal Mining Safety and Health Act 1999 (QLD) (CMSH) to this effect and argued that this gave it authority to direct Grant to attend a medical assessment.

This claim was determined in the BHP’s favour at first instance, on appeal to the Full Bench of the Fair Work Commission, on appeal to the Federal Court of Australia and finally following appeal to the Full Court of the Federal Court of Australia.

The Full Court accepted that BHP’s argument regarding the provision of the CMSH. The Full Court also noted BHP’s other argument that absent the CMSH it would still have an implied contractual right to direct its employee to attend a medical assessment if the direction was not unlawful or unreasonable. The circumstances in which such a direction can be given extend to where the return to work may pose a risk to the employee in question or other employees, or where adjustments may be required to be made, or where the system of work has changed during the employee’s absence.

The second decision (Laviano v Fair Work Ombudsman [2017] FCCA 197) followed an adverse action claim being brought by an employee, Laviano, who argued his employment with the Fair Work Ombudsman (FWO) was terminated due to indirect discrimination.

Laviano had been absent from work due to a psychological condition for periods between March and December 2014. Between July 2014 and November 2014 the FWO attempted to facilitate his return to work by requiring him to be medically assessed. The FWO scheduled six medical assessments in that time; Laviano failed to attend five and attended the sixth so late that it was unable to go ahead. In mid-October 2014 Laviano’s psychologist reportedly told him not to open daily mail or contact his employer and later, in mid-December 2014, to avoid “attending work or work compensation matters.” Laviano attempted to rely upon this advice to support a contention he did not learn of an assessment scheduled for late November 2014 until late December 2014.

Laviano argued that he was dismissed because he could not comply with a requirement to attend medical assessments due to his disability and also because he exercised a workplace right to take personal leave due to that disability.

The FWO argued that Laviano was dismissed because he could not perform his duties as he did not comply with reasonable directions to attend the medical assessments. The FWO also alleged that Laviano had breached an implied duty to communicate during his absence, noting that he had been non-communicative between early October and late December 2014 without notifying the FWO this would occur or why.

The Federal Circuit Court accepted that despite Laviano being on personal leave he was subject to an implied duty to communicate with the FWO or delegate this duty to a third party.  It found that Laviano breached that duty by simply choosing not to communicate with the FWO and not delegating or authorising his doctors or solicitor to do so in his place. The Court did not accept that the medical advice could reasonably be construed as indicating Laviano was incapable of attending a medical assessment.

Judge Altobelli observed that in declining to communicate with the FWO and failing to attend assessments Laviano prevented the FWO from being able to manage its work, health and safety obligations. His Honour concluded that Laviano’s employment was terminated for the reasons stated by the FWO and that Laviano was “no more a victim of indirect discrimination than is a man who puts his hands over his ears so he cannot hear oral instructions, or a man who closes his eyes so that he cannot read written instructions.”

Lessons for employers
  • It continues to be accepted that employers have an implied contractual right to issue directions to employees if those directions are lawful and reasonable.
  • Whether this extends to being able to direct an employee to attend a medical examination will depend upon considerations which include:
    • the severity of employee’s injury, illness or condition;
    • how long the employee has been absent;
    • what is known by the employer about the employee’s condition;
    • whether the employee’s treatment providers are able to assess the employee’s capacity to perform their duties or if a specialist would be better placed to make that assessment;
    • any safety risks posed by the workplace and the employee’s role;
    • any statutory authority that supports the employer’s right to give the direction;
    • whether the contract of employment, enterprise agreement or the policies of the employer support the employer’s position.
  • When an employee goes off work due to illness or injury the employer should be clear about its expectations regarding the evidence it requires to substantiate the basis for the absence and ongoing communication during the absence.
  • Employees are subject to an implied duty to communicate with their employer even while absent. This duty can be delegated and employers should be mindful that an employee – for instance with a psychological injury – may have difficulty communicating directly with their employer.
  • When the employee wishes to return to work the employer should ensure it understands how the employee’s condition may affect their ability to return to their duties safely.
  • If further information is required the employer should seek this from the employee or, with permission, the employee’s treatment providers. An employer may consider sending the employee to a specialist if it is not satisfied the employee’s treatment providers can properly assess the employee’s capacity to return to work or the employee refuses to provide authorisation to contact their treating doctors.
  • Employers should ensure it is clear that in seeking further information or directing the employee to be assessed that they are seeking to understand the employee’s condition and facilitate a safe return to work.
  • There will be circumstances – like that of Grant and Laviano – where a refusal to comply with directions or participate in return to work processes justifies disciplinary action up to and including dismissal.
  • Employers should ensure that their contracts of employment, enterprise agreement and policies support taking such action.

Managing the return to work of an ill or injured employee can be a difficult process.  Each case must be determined on its own facts and handled with care.  If you require any assistance with a particular situation or drafting contracts or policies dealing with this we would be happy to assist.

Posted by Catherine Pittaway and Sarah Jones

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