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.

Some pondering on ethics and morality

This months' Human Resource Director Magazine had an interesting piece on ethics interviewing the GM HR of ANZ, Suzette Corr.

The big takeaways from the interview are actually two quotes. They obviously struck the HRD editor as well as he (Ian Hopkins) also referred to them in his editor's note inside the front page.

Firstly was this:

My take on integrity is it's the personal drive to do what's right. It's to advise on in what's right. It's to advise without fear or favour and to have the moral character to not just know right from wrong, but to speak up and challenge as necessary... It's in the actions you take rather than just a trait of who you are. 

What really struck me from this quote is it moves beyond just an ethical stance but rather looks towards one's actions and to be able to take those actions with courage of unbiased thought. 

The other was in reference to how CHRO's and HRD's can often find themselves leading organisations of thousands or tens of thousands of people and their capacity to drive positive change is particularly significant. 

Imagine the powerful force for good HR could be if these people, whose profession is humans, embraced an understanding of ethics and integrity and acted upon and spoke up to ensure the right thing was done?

This got me thinking back to a podcast I heard from Radio National's All In The Mind years ago about morality and so I went on a search. Fortunately I found it surprisingly quickly! It's titled Moral Minds: The Evolution of Morality and while it doesn't directly reference the organisational context, I believe it still has worthwhile items to ponder on. Here All In The Mind interviews Mark Hauser, Professor of Psychology and Evolutionary Biology at Harvard University and Richard Joyce, Associate Professor of Philosophy at the University of Sydney.

Below are two extracts from the show. Both have differing and interesting implications when we look back to the workplace. With Marc it relates to distance (physical and hierarchical/organisational), action vs inaction and why sometimes people might be inclined "put things under the rug". With Richard it delves into areas like organisational politics, unwritten cultural norms and conflicting obligations.   

Marc Hauser: 

So where we're making progress on this is that we built about three years ago a website called The Moral Sense Test which now after about three years has somewhere like 300,000 subjects from around the world. And on that website people log in and tell us where they're from, their religious background, or educational background, age and so forth. And then they proceed to take many of the kind of classic moral dilemmas that you know people like Richard and other moral philosophers have invented to try to get some purchase on the nature of people's intuitions. 

Here's some examples of the kind of things that seemed to cut across culture, at least with the sample we have. 

As far as we can tell across this very large sample of people, people judge actions that cause harm as worse than omissions of an action that caused exactly the same harm. People consider a harm that is intended as worse than the same harm that is foreseen... 

...why is it that people think that using somebody as a means to an end is not OK, whereas something that maybe harms one but for a greater good, under certain circumstances, it might be OK.

Richard Joyce: 

If it's true that human ancestors lived in an environment where reciprocity was extremely important to them, which almost certainly they did, then there's a question of 'well, what does morality actually add to the reciprocal exchange'? And the idea that I've been examining is that it bolsters motivation. It's all very well to give something to somebody cause you like that person, but if in addition you feel that you're morally obligated to pay them back in exchange for something they gave you on a previous occasion - that is perhaps the evolutionary function of the moral faculty. That it bolsters motivation in the social sphere to make us better co-operators.

If you have the time and interested in the subject, I highly recommend you check out the article and podcast.

What makes your employees highly engaged?

This infographic I came across on LinkedIn is rather self-explanatory so I'll save an introduction.

Click on the image to enlarge

What I do find interesting however is the bottom statistic, knowing what is expected of them at work, which is the only element shown as being almost identical between engaged and disengaged employees.

When you contrast that against the highly engaged experiences - talking about progress, encouraging development and praising work there is a clear pattern. It's not so much about the 'what' but instead the 'how' and 'why' that can really help drive engagement when talking about management direction. Do employees still need to know what's expected of them? Yes of course they do but if you want highly engaged employees you'll need to deliver much more than that. 

I also took note of the phrase They have a best friend at work. This puzzled me a little bit however in my quick search for the original image source was not able to find further information. I can only think this refers to having a trusted friend in the colloquial sense. 

My final thought is some of these statements are almost truisms such as Their manager cares about them however even so there were a number of respondents who clearly answered in the negative. It would be fascinating to take a deeper look at some of these respondents and cross reference answers against other data points. Are these 'lone-wolf 'engaged employees who plough their own destiny or just unavoidable statistical deviations? Without knowing more background on these numbers I'm not entirely sure. Perhaps I'll have a new perspective in a few years when I have run through number of new engagement pieces both individual and organisational.