Worker's Ability to Perform Duties

We often get a phone call where the employer is concerned about the ability of an employee to safely perform their duties due to an injury, an illness, or even age.

In such a case it is often appropriate to have the employee undergo an independent medical appraisal to confirm that the employee will be safe to resume, or continue, work.

What happens if the employee refuses to undergo the medical appraisal?

This will depend upon the facts and circumstances of each situation. In a recent case in South Australia the Employment Tribunal dismissed an application for unfair dismissal after the employee failed to attend such a medical examination.

After several requests the employee failed to attend the appointment and was dismissed for serious misconduct, failing to comply with a reasonable instruction of his employer.

The employee had provided medical certificates from his own GP but when the employer asked the employee to provide consent for the GP to tell them about the illness and the employee’s fitness for work, the employee refused.

Decision

The Tribunal found that the employer had an obligation and duty to investigate the health issues before allowing the employee to return to the workplace.

The Tribunal observed that whilst the decision was couched in the language of misconduct, the real issue for determination was one of the reasonableness of the request for the medical opinion about the employee’s health, capacity and fitness for work.

The Tribunal found the refusal to attend the medical appointment was deliberate disobedience of a serious directive, with the awareness that disobedience could lead to dismissal. It was found that the termination of employment was not unfair.

The employer is obliged to provide a safe place of work and not put the employee, or others, at risk of injury if an employee cannot safely perform their duties.

In another matter the Federal Court judge said, after highlighting the onerous nature of an employer's obligations under work health and safety laws:

"It is, in my opinion, essential for compliance with the above duties, that an employer be able, where necessary, to require an employee to furnish particulars and/ or medical evidence affirming the employee's continuing fitness to undertake duties. Likewise, an employer should, where there is a genuine indication of a need for it, also be able to require an employee, on reasonable terms, to attend a medical examination to confirm his or her fitness."

If you have concerns about the safety an employee returning to the workplace after an injury or illness, or concerns about the physical capacity of an employee to safely perform their tasks, contact Andrew to find out the best course of action.