Federal Court confirms employers' implied right to obtain a medical report regarding an ill employee

The recent Federal Court decision of AIPA v Qantas [2014] FCA 32 confirms an employer has an implied right at law to obtain medical information about an employee's ability to undertake their duties.

Background

The employee, engaged as a pilot, submitted a medical certificate stating he was suffering from clinical depression and certifying him unfit for work for 3 months. The employee subsequently submitted a further medical certificate which provided little or no information stating that he suffered from a "medical condition" and would be unfit for work for a further 3 months.

On four occasions, Qantas requested the employee obtain a medical report from his treating medical practitioner indicating his diagnosis, prognosis, capacity to return to pre-injury duties and the anticipated time frame. Qantas also requested the employee attend a meeting regarding the matter. The employee failed to comply with the requests.

Qantas advised the employee that failure to comply with the requests may result in disciplinary action up to and including termination of employment. In its most recent letter to the employee, Qantas told the employee that prior to making any decision regarding disciplinary action, the employee should advise Qantas in writing why disciplinary action including termination of employment, should not be taken against him.

The employee, through the AIPA filed a general protections claim alleging Qantas' requests were unlawful or unreasonable and amounted to adverse action. It alleged:

• the relevant enterprise agreement that allowed the employee at his election to produce a medical certificate or other evidence of his unfitness for work provided a workplace right and the employer could not fetter the employee's option by requiring a medical report;
• Qantas had taken adverse action by threatening disciplinary action if he did not provide a medical report; and
• Qantas had taken adverse action because the employee had exercised a workplace right.

Decision

Justice Rares found in the circumstances, it was reasonable for Qantas and Qantas was entitled to seek further information about the employee's medical condition and require him to attend a meeting to discuss such matters - particularly as Qantas was seeking it solely for the purpose of planning its rosters and staffing levels, and to assist the employee in returning to work. This right derives from an employer's right implied in the employment contract to require an employee to provide, in such circumstances medical information to an employer.

Justice Rares said that "…it would be quite unrealistic to expect Qantas, as an employer, to be left with substantively no right or ability to require a sick employee to provide it with information, of the kind sought here, about the present and future position of a crew member who had been on extended sick leave."

Further, Justice Rares said "An employee's statutory, certified agreement or analogous industrial award based entitlement to take sick leave does not displace the contractual relationship in which, at some point, the employer is entitled to make its own business arrangements to adjust for the impact that the leave caused by the sickness of the employment will have on it and to address its obligations under the Work Health and Safety Act and its analogues."

Conclusion

The case confirms prior case law and further clarifies an employer's implied right to seek medical information regarding ill and injured employees in certain circumstances. In particular:

•   employers may in certain circumstances seek medical information regarding an employee's medical condition which may affect their work capacity, particularly where insufficient or basic medical certificates are provided; and
• such a right is not automatic rather, it exists where it is reasonable in all the circumstances and there is a legitimate operational or business purpose for the request for medical information.

Further, when an employee refuses to co-operate in obtaining such medical information for a reasonable purpose and the employee is disciplined, such disciplinary action of itself will not generally constitute an adverse action.

Although the decision confirms the employers' implied right seek further medical information, employers should, before they exercise that right seek advice on:

• the medical information requested and whether it is appropriate in the particular circumstances;
• the procedure to be followed when requesting medical information from ill and injured employees; and
• the disciplinary process, if any, that should be followed in such circumstances when an employee fails to comply with the employer's lawful requests for medical information to assist in determining the employee's capacity to return to his/her duties;

to assist in decreasing any associated risks.

Further employers, should consider enhancing their implied common law right with a robust express provision within their contracts of employment.

If you would like more information about the case or the management of ill and injured employees generally, please contact National Workplace Lawyers on +61 2 9233 3989. 

National Workplace Lawyers

Note — this is for information purposes only and does not purport to be comprehensive or to render legal advice.