Assessing fitness for work and directing employees to attend independent medical examinations

Can an employer direct an employee to attend upon a company doctor to assess their physical or psychological fitness for work? We get asked this question a lot. The answer, according to the Fair Work Commission in the recent decision of Daniel Cole v PQ Australia Pty Ltd [2016] FWC 1166 is:

“an employer may have the right, depending upon the circumstances, to require a medical examination where the employer has concerns that an employee cannot perform the inherent requirements of the job”.

 In Daniel Cole v PQ Australia Pty Ltd, the employee took one day off on sick leave. He provided a medical certificate stating he was suffering depression and was receiving treatment. The employer responded by directing him to attend upon the company doctor to determine his fitness for work. The employee refused, and was dismissed for (amongst some other reasons) failure to attend the company directed medical examination.

The Fair Work Commission found that the dismissal was unfair because there was:

“no reasonable basis to assume that Mr Cole had any illness which related to his capacity to perform the inherent requirements of the job. The fact that Mr Cole disclosed that he was suffering from depression …does not provide a reasonable basis to assume that he was incapable of performing the inherent requirements of the job”.

 The employer was ordered to pay compensation in the amount of $43,906.72 less tax.

What are the lessons?

To determine fitness for work (both physical and psychological) and minimise legal risk, employers must consider that the following test applied in Cole when answering the question of whether the requirement to attend the medical examination prior to return to work is reasonable:

1. Is there a genuine indication of the need for the examination such as prolonged absences from work or absences without explanation or evidence of an illness which relate to the capacity to perform the inherent requirements of the job?
2. Has the employee provided adequate medical information which explain absences and demonstrated fitness to perform duties?
3. Is the industry or workplace particularly dangerous or risky?
4. Are there legitimate concerns that the employee’s illness will impact on others in the workplace?
5. Does the employee agree to the assessment by the practitioner selected by the employer?
6. Was the employee advised of the details of the conduct which led to the concerns around fitness for duty?
7. Was the medical practitioner advised of the issues of concern and were those matters focused on the inherent requirements of the job? What information will be given to the medical practitioner about the actual job requirement?
8. Was the employee advised of the matters to be put before the medical practitioner for the assessment?
9. Was the medical assessment truly aimed at determining, independently, whether the employee was fit for work?

Managing ill and injured employees is a complex area overlapping with numerous areas of law, including unfair dismissal, workers compensation, adverse action and discrimination. It may be necessary or wise to seek legal advice when dealing with such matters.