No obligation to co-operate with fitness for work assessment - not so says Fair Work

Introduction 

A recent Fair Work Commission (the Commission) decision confirms employees are, in general, obliged to co-operate with an employer's reasonable direction to assist with fitness for work assessments. 

Background 

Ms Columbine was engaged as a Correctional Officer (CO) with the GEO Group Australia Pty Ltd (GEO). In September 2011, in separate incidents, Ms Columbine suffered work related hip and shoulder injuries. Ms Columbine returned to work in modified duties.

In March 2014, Ms Columbine's modified duties came to an end and there was no other position available in which she could work with her medical restrictions.

In May 2014, Ms Columbine produced a medical certificate from her general practitioner (GP) advising she could undertake work for four hours a day in her pre-injury role with standing and walking limitations. 

• a medical certificate from her GP indicating that she was fit to perform her pre-injury role;

• a report from her GP as to why his opinion had changed from his prior certificate; and

• an authority from Ms Columbine to allow GEO to correspond directly with her GP.

The GP through Ms Columbine, subsequently provided GEO a certificate clearing Ms Columbine for  pre-injury duties without restriction, and his report stating Ms Columbine had improved significantly since changing her treatment provider in February and as a result of an MRI, he could not foresee any likelihood of her suffering any further injury or recurrence.

Ms Columbine failed to provide a medical authority for GEO to correspond with the GP and did not provide a reason why she would not do so. 

GEO subsequently advised Ms Columbine that given her failure to provide all the information sought and that she was not prepared to engage with it to take reasonable steps to ensure her health and safety, that her employment was terminated.

Ms Columbine subsequently lodged proceedings with the Commission alleging she was unfairly dismissed.

As part of the proceedings, it came to light that Ms Columbine forwarded an email to her GP, providing him with a draft report written by her and asking the GP to provide a report along the same lines to GEO. The report ultimately provided by the GP was in nearly identical terms to the one written by Ms Columbine.

Findings

In considering the evidence before it, the Commission found that:

• the GP's report did not explain why Ms Columbine's fitness for work changed or why the risk of further injury had diminished;

• Ms Columbine did not provide any authority for GEO to correspond with the GP, despite this being a reasonable direction by GEO; and  

• GEO had a legitimate need to fully understand the sudden change in Ms Columbine's medical status and regardless, Ms Columbine failed to engage with GEO in a meaningful way, comply with what was a reasonable direction and one which would enable GEO to make a proper assessment.

It was determined that Ms Columbine's employment was terminated for a valid reason. Importantly, the Commission found that:

"A request to Ms Columbine that she assist GEO in reaching the satisfaction necessary for it to be confident that her return to work would not create a health and safety risk to herself and others, in this context, cannot be construed as an unreasonable direction. Fulfilment of the direction would have enabled GEO to comply with its obligations under health and safety laws."

Further:

"Ultimately Ms Columbine chose not to engage fully with GEO with respect to its requests. GEO was entitled to conclude that there were health and safety issues involved in a return to full time CO duties given the sudden change in her medical status as indicated by the first and second medical certificates.

In these circumstances I am satisfied that there was a valid reason for her dismissal." 

Lessons 

This case reinforces an employer's ability to require employees to co-operate with legitimate fitness for work assessments when directed to do so. Further it recognises the tension experienced by employers in managing their duty under workplace health and safety legislation and providing ongoing duties to injured employees.

It is important in managing these matters that employers ensure that:

• directions to employees to provide medical information or requests to attend medical assessments are reasonable in the circumstances and for a legitimate reason;

• directions to employees to obtain medical information or attend assessments are clearly documented and appropriately drafted written directions provided;

• any medical evidence provided is carefully scrutinised to ensure that it is appropriate and in accordance with what was requested; and

• in circumstances where employees refuse to provide medical authorities or attend medical assessments,  legal advice is sought regarding the next steps and to assist in minimising risk.

If you would like more information about this case or managing ill and injured workers 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.