There has been a flurry of recent cases concerning the management of ill and injured employees that provide useful guidance for employers.
Grant v BHP Coal Pty Ltd (No 2)  FCA 1374 – direction to attend an IME
The Federal Court has confirmed that an employer can rely on its statutory work health and safety obligations to direct an employee, on reasonable grounds, to undertake an independent medical examination (IME) and also that an employer may commence disciplinary action if the employee refuses this direction.
Mr Grant was employed as a boilermaker with BHP for about 10 years. He had taken lengthy periods of leave from work due to a shoulder injury and attempted to return to work following rehabilitation. Mr Grant provided BHP with a medical certificate that provided no information about his injury other than stating he was fit to return to normal duties.
BHP directed Mr Grant to attend an IME so it could ascertain further information about Mr Grant’s injury and fitness to return to work, including risks associated with re-aggravation. Mr Grant refused to participate in the IME and, following an investigation and show cause process, BHP terminated Mr Grant’s employment for misconduct, including his failure to participate in the IME as directed by BHP.
Mr Grant lodged an application for reinstatement alleging unfair dismissal with the Fair Work Commission (FWC). The FWC and Full Bench held that BHP’s direction to Mr Grant to undertake the IME was lawful and reasonable, Mr Grant’s refusal to participate in the IME (and the subsequent disciplinary process) were valid reasons for termination and that Mr Grant’s termination was not harsh, unjust or unreasonable.
The Federal Court affirmed the decisions of the FWC and the Full Bench, finding that employees have a clear common law right not to be forced to undertake a medical assessment, however:
- this common law right can be abrogated where there is clear parliamentary intention or other lawful authority, for example, the employer’s reliance on the Coal Mining Safety and Health Act 1999 (Qld), and the employer has reasonable grounds for requiring further medical evidence; and
- where an employee refuses a lawful and reasonable direction to participate in the IME, disciplinary action can follow.
Cole v PQ Australia Pty Ltd  FWC 1166 – what should the employer consider when determining whether their direction for the employee to attend an IME is ‘reasonable’?
In this recent 2016 decision, the FWC provided a useful guide as to what an employer ought to consider when determining whether an employer’s direction to an employee to undertake an IME is made on reasonable grounds.
Employers should consider the following questions:
- Is there a genuine need for the examination, such as long work absences, or absences without evidence of any injury or illness that relate to the employee’s ability to perform the inherent requirements of their job?
- Has the employee already provided adequate medical information that explains their absences and shows their fitness to perform their duties?
- Is the industry or workplace particularly dangerous or risky?
- Are there legitimate concerns that the employee’s illness or injury could affect others in the workplace?
- Has the employee agreed to the examination by the medical practitioner selected by the employer?
- Has the employee been advised of the details of the conduct that led to the concerns that they were not fit for duty?
- Has the medical practitioner been advised of the issues of concern and have those matters focused on the inherent requirements of the job?
- What information is proposed to be given to the medical practitioner about the actual job requirements?
- Has the employee been advised of the matters to be put before the medical practitioner for their assessment?
- Is the IME truly aimed at determining, independently, whether the employee is fit for work?
In Cole v PQ Australia Pty Ltd, the employer directed an employee to undertake an IME in circumstances where the employee had taken one day off work as sick leave, provided a medical certificate to the employer and disclosed to the employer that he was suffering from depression.
The employee refused the employer’s direction to attend the IME and was dismissed by the employer.
The employee made an application for reinstatement in the FWC alleging unfair dismissal. The FWC held that the dismissal was unfair because it was harsh and unjust as it was unreasonable for the employer to request the employee to undertake the IME in the circumstances.
Construction, Forestry, Mining & Energy Union v Endeavour Coal Pty Ltd  FCAFC – employer’s right to manage absenteeism and require predictability not adverse action
In CFMEU v Endeavour Coal, the High Court affirmed the decision of the Full Federal Court that action taken by an employer was not unlawful but was linked to the lack of predictability of the employee’s attendance rather than because the employee took paid personal and carers’ leave (i.e. exercised a workplace right).
The employer removed the employee from the weekend day shift roster following periods of personal leave taken to care for his ill wife and young children. The employer placed the employee back on the weekend day shift on the basis that the employee signed an agreement, which stipulated process and evidence requirements if the employee was absent from work.
The employee took further absences, did not comply with the absenteeism agreement, and was again removed from the weekend day shift roster.
The Union initially commenced proceedings in the Federal Circuit Court on behalf of the employee, alleging that the employer had taken unlawful adverse action against the employee in breach of Part 3-1 of the Fair Work Act 2009 by removing the employee from the weekend day shift following his exercise of a workplace right to take personal and carers’ leave.
The Federal Circuit Court held that the employee had been exercising a workplace right when he had been absent and that there was no doubt that the employee had been prejudicially altered in his position. However, the Federal Circuit Court held that there was no causal connection between the employee’s exercise of his workplace rights and the prejudicial alteration of his position.
The Federal Circuit Court found that it could not simply be inferred that the change in roster allocation was a reaction to the employee taking the leave. The Federal Circuit Court also accepted that the employer removed the employee from the weekend day shift roster because he did not always attend when he was rostered to work and that the employer did not want to have workers on that shift whose attendance was not predictable and reliable.
On appeal by the Union, a majority of the Full Federal Court upheld the Federal Circuit Court’s decision and, in dismissing the appeal, held that the reason the employer removed the employee from the roster was not due the employee exercising a workplace right to take personal and carers’ leave but because of the employee’s lack of predictability, which had economic consequences.
Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd  FCAFC 157 – dishonesty associated with sick leave absence
In CFMEU v Anglo Coal, the Full Federal Court held that an employee was validly dismissed for dishonesty and not because the employee had exercised a workplace right.
The employee had applied for two days’ annual leave, which was refused by the employer. The employee subsequently took two days’ sick leave for the period and provided the employer with a medical certificate. The employee had previously stated to other employees that he would take the refused leave as sick leave.
The employer dismissed the employee following a show cause process for dishonesty. The Full Federal Court held that it was open to the employer to form the view that the employee would take sick leave following the refused annual leave request and justify this absence with a medical certificate.
In these circumstances, the Court held that the employer had not dismissed the employee for any reason associated with his absence from work because of illness or any other unlawful reason.
The Union applied to the High Court for special leave to appeal the decision. However, on 17 June 2016, the High Court refused to hear the appeal. The Union argued that the Full Federal Court had erred in determining that the employee’s sick leave was not an operative reason for the dismissal and that the employer should have been required to investigate whether the employee’s sick leave was valid prior to the decision to dismiss.
In dismissing the application, the High Court affirmed the Full Federal Court decision and held that the Union’s application did not give rise to issues of principle that would warrant the grant of special leave.
These decisions provide guidance for employers navigating the management of ill and injured employees, including that:
- an employer can reasonably rely on the employer’s obligations under work health and safety laws to direct an employee, on reasonable grounds, to attend an IME;
- employers should consider a range of matters, including whether there is a genuine need for the IME, the nature of the workplace and industry, the medical information already provided and appropriate consultation with the employee, to determine whether a direction to the employee to attend an IME is made on reasonable grounds;
- employers can, in certain circumstances, take appropriate action that may be prejudicial to the employee’s employment to manage absences that affect the employer’s operations; and
- employers can require employees to conduct themselves in an honest manner when accessing leave, including personal or carers’ leave.
By Annie Smeaton, Partner and Sandy Barry, Associate
This article originally appeared in the July issue of our Workplace Relations and Safety Risk Management Adviser.