Employer can direct employees to attend medical assessments when on sick leave

Facts

The employee alleged he was dismissed because he suffered a disability and exercised a workplace right to take sick leave due to his disability.  The employer, in this case the Fair Work Ombudsman, alleged that the employee was dismissed because he was unable to perform his duties on account of failing to attend a medical appointment scheduled for 27 November 2014.

The employee was absent from work from 24 March to 21 September 2014, 7 October 2014 to 22 December 2014 and then from 24 December 2014 until he was dismissed on 9 January 2015. The employer required the employee to attend six medical assessments between 22 July 2014 and 27 November 2014 to assess his medical condition and to assist his return to work.  The employee failed to attend the first five medical appointments at all and attended the sixth so late that it was cancelled.  The employee was told by his doctor not to communicate with his employer.  However, the employer was not aware of the doctor’s advice and the employee took no steps directly or through a third party to communicate with the employer.

Findings

The Court found that the employer did not take adverse action against the employee as the dismissal was because he did not attend the medical appointments and thus was unable to perform his duties. 

Importantly, the Court found that:

• An employee “cannot unilaterally abrogate to himself through treating health professionals the ability to decide whether and if so when he can be independently medically assessed in relation to a disability which the employee claims is related to the workplace”.
• An employee has a duty to communicate with their employer even during a period when an employee is on sick leave.  That duty to communicate can be delegated to someone else.

Lessons for employers

When an employee is absent on leave on account of illness, he or she still has a duty to communicate with his or her employer and likewise an obligation to attend medical assessments regarding disability unless a report from the employee’s doctor expressly indicates the employee is unable to do so.  Nevertheless, even in such circumstances, any such restrictions imposed by an employee’s treating doctor cannot operate indefinitely. 

Laviano v Fair Work Ombudsman [2017] FCCA 197 (15 March 2017)

If you would like to know more about this case please contact National Workplace Lawyers on (02) 9233 3989.

National Workplace Lawyers

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