Make sure you're on sound footing before directing an employee to attend a medical assessment

In the recent finding of Cole v PQ Australia Pty Ltd t/a PQ Australia [2016] the Fair Work Commission has provided some clarity around when it is reasonable for an employer to request an employee attend a medical examination.

In this case PQ Australia stood down Mr Cole after he had taken one day personal leave and directed him to attend a medical examination. When Mr Cole refused (and failed) to attend the medical examination, PQ Australia terminated Mr Cole's employment.

PQ Australia did not state this was the sole reason for his termination. They also mentioned he failed to comply with a direction to only communicate with PQ Australia's Vice President of HR during his stand down. In addition PQ Australia stated in their communication to Mr Cole:

“The reason that we have directed you not to attend for work until further notice is that a number of issues have arisen in the workplace over the last few months which have involved or affected you and we are concerned about the impact these issues have had on you and on others.”

However it was clear that not attending the medical assessment was the core issue here.

In situations such as these, one would expect Mr Cole to have a history of abnormal personal leave absences in order to justify the request for a medical. However this was not the case, as Commissioner Roe finds:

"PQ Australia did not allege that they had any concerns about the frequency or nature of Mr Cole’s absences from work on personal leave. Mr Cole had not had any lengthy or frequent absences. In fact he had accumulated more than 27 days of unused personal leave in his approximately 4 years of service. Mr Cole was absent for one day on personal leave on 14 June 2015. Mr Cole attended his doctor and eventually provided a medical certificate for this single day absence. He also provided a pathology request form signed by his doctor which included a diagnosis of his condition."

Given these facts it is unsurprising that Commissioner Roe found that the request to be unreasonable. While the employer presented a number of reasons to support their request, these were not substantial enough and in reviewing the matter Commissioner Roe outlined the following questions to consider:

1.   Was 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 related to the capacity to perform the inherent requirements of the job

2.   Had the employee provided adequate medical information which explained absences and demonstrated fitness to perform duties?

3.   Was the industry or workplace particularly dangerous or risky?

4.   Were there legitimate concerns that the employee’s illness would impact on others in the workplace?

5.   Did the employee agree to the assessment by the medical practitioner selected by the employer?

6.   Was the employee advised of the details of the conduct which led to the concerns that he was not fit 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 was proposed to be given to the medical practitioner about the actual job requirements?

8.   Was the employee advised of the matters to be put before the medical practitioner for his assessment?

9.   Was the medical assessment truly aimed at determining, independently, whether the employee was fit for work?

PQ Australia felt the full brunt of the Fair Work Act in Commissioner Roe's findings as he applied the full 6 month compensation as a remedy in favour of Mr Cole. This equated to a payment of $43,906.72.

I have found medical assessments work best with an open and transparent approach. Clearly in this case the situation became adversarial and hostile almost from the very start. It's important to ensure employees feel comfortable during the process so in turn they and their Doctor/s are more likely to be fully cooperative with the employer.

Holding Redlich also has a quick write up on the case here.