Several recent cases have considered the question of what employers can do when faced with an employee’s extended absence from work, due to illness or incapacity.
The legislation provides that employment cannot be terminated for a “temporary absence or illness” which covers up to 3 months after the employee’s paid personal leave is exhausted. In cases where the employee is receiving workers compensation this period is extended to between 6 and 12 months, depending on the state or territory where the worker is located.
Once the initial period has expired, and the longer the employee is absent from the workplace, employers are faced with the question of how they can manage the employee, particularly when it is unclear how long the illness or incapacity will continue.
Employers are entitled to be satisfied that an employee is able to fulfil the “inherent requirement” of their role; that is, the core components of the position in which they are employed.
Commissioner Wilson noted in Kevin Rowev V/Line Pty Ltd (U2012/17463) that “when an employer relies upon an employee’s incapacity to perform the inherent requirements of his position or role, it is the substantive position or role of the employee that must be considered and not some modified, restricted duties or temporary alternative position that must be considered.” This is important if the employee’s role has been temporarily modified in any way to allow them to return to work following a period of absence. Commissioner Wilson further commented that employers are not required to keep employees “on the books” for an extended period of time when there are not clear prospects of their return to work.
So how does an employer assess whether an employee is able to fulfil the inherent requirements of his/her role?
If an employee has not returned to work, and the minimum time has elapsed, the first step is to review the medical evidence available as to the employee’s current capacity and timeframe for returning to work. Typically the medical certificates will not provide this information and the employer will require more detailed medical evidence.
The recent cases of International Pilots Association v Qantas Airways Ltd  FCA 32 andMr Darrin Grant v BHP Coal Pty Ltd  FWC 1712 both considered the issue of employers requesting further medical assessments of employees.
The Federal Court in the Qantas case ruled that the employer had an implied contractual right to request a detailed medical certificate from an employee on long term sick leave, in order to manage its business operations and assist the pilot to return to work. The employee had supplied a general medical certificate stating that he was unfit for work without providing further information as to his prognosis, capacity and likely timeframe to return to work.
Justice Rares stated that it would be "quite unrealistic to expect Qantas, as an employer, to be left with substantively no right or ability to require a sick employee to provide it with information, of the kind sought here, about the present and future position of a crew member who had been on extended sick leave".
The Commissioner in the BHP Coal case held that the employer was entitled to dismiss the employee, who had been off work for approximately 10 months with a shoulder injury, after the employee refused to attend several medical appointments that had been arranged by the employer.
Interestingly in this case the employee had returned to work, however the employer was unable to adequately assess whether it could provide suitable duties given his medical condition. The employee had been advised by the employer that the medical appointment was necessary to determine his capacity on returning to work and any restrictions on his ability to perform his duties. The employee was clearly warned that a failure to attend the appointment could lead to disciplinary action (including termination of his employment).
Provided that the employer has a justified and legitimate purpose, in most cases they will be entitled to request further detailed medical evidence regarding the employee’s capacity to perform the inherent requirements of their role.
If, after reviewing the available medical evidence, the employer is unable to determine the diagnosis, prognosis or timeframe for the employee’s return to work, then it should seek a further medical assessment of the employee.
The employer can arrange for an appropriate medical practitioner to assess the employee, and we suggest the medical practitioner be requested to provide:
a) Diagnosis of the employee’s condition;
b) Assessment of the ability of the employee to perform the specific duties associated with the role (and these duties should be provided to the medical practitioner); and
c) Timeframe for the employee to return to work.
The employer should make it clear to the employee what the purpose of the medical assessment is; and they should ensure the employee is made aware (preferably in writing) that if they do not comply with the employer’s direction to be medically assessed, then they may face disciplinary action including termination of their employment.
Christine Broad, Solicitor, BlandsLaw
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