Employers often ask what their options are if they have doubts about a worker’s fitness to perform their duties. A number of decisions of the Federal Court give employers additional guidance.
Thompson v IGT (Australia) Pty Limited [2008] FCA 994
In this case, Mr Thompson who was employed as a graphic artist and animator suffered significant problems associated with a back injury that predated his employment with IGT.
Over a period of time, Mr Thompson was excessively absent from work as a result of his back injury. He could give IGT no definitive prognosis about his long term fitness for work or information on how his injury could be accommodated in the work environment.
Of further concern to IGT was that it appeared some absences were not related to his physical injury. Consequently, IGT sought to better understand Mr Thompson’s condition by arranging for two doctors, a general surgeon and a psychiatrist, to evaluate and provide medical reports to IGT.
Mr Thompson was evaluated by the general surgeon who provided medical reports to IGT. However, Mr Thompson objected to seeing a psychiatrist because he asserted that the requirement to see a psychiatrist fell beyond what was relevant to his condition. He claimed discrimination against IGT on the basis of his disability and sought an injunction against IGT to restrain them from requiring a psychiatric assessment.
In considering whether IGT had acted in a discriminatory manner, the Court considered whether IGT had the right to require Mr Thompson to attend a medical appointment as his employer.
The Court found that IGT’s request that Mr Thompson attend a medical assessment was a lawful reasonable direction and was not discriminatory because it helped IGT better understand his physical and mental condition, assess whether he was fit for his role and gather information on what adjustments or changes may be required in the workplace to meet its obligations to provide a safe workplace.
Australian & International Pilots Association v Qantas Airways Limited [2014] FCA 32
In this case, a Qantas pilot provided a medical certificate stating that he was suffering from clinical depression and would be unfit for normal duties for a period of four months. Thereafter, he provided a second medical certificate for a further four months.
Qantas sought a written report from the pilot’s treating doctor indicating a diagnosis, prognosis and comment on his capacity to return to his pre-injury duties. When the pilot did not provide the requested information, Qantas advised that failure to provide the requested information would be considered misconduct and give rise to disciplinary action. The pilot commenced an adverse action claim, which progressed to the Federal Court.
The Federal Court held that the direction by Qantas that the Pilot provide medical evidence concerning his condition did not amount to adverse action within the meaning of the Fair Work Act 2009. In dismissing the application, the Court noted Qantas’s statutory obligations as an employer to take reasonable steps to ensure it provided a safe workplace for all employees. On that basis, the request by Qantas and the threat of disciplinary action for failing to comply with that request did not constitute adverse action.
The Court commented that it would be unrealistic to expect Qantas to be left with substantively no right or ability to require an employee to provide them with information of the kind sought because Qantas could be considered negligent in its duty of care to its employees and its customers.
Conclusion
We note the following key points:
