Clearly employees are entitled to be absent on approved leave and to return to their role when the period of leave has expired. However, when the absence becomes long-term, often due to an accident or illness, employers can find themselves in the difficult situation of being unable or unwilling to keep the position open indefinitely, but unsure of their options around managing the employee.
The Fair Work Act 2009, along with the Fair Work Regulations 2009, clearly sets out that an employer is prohibited from terminating an employee for reason of a “temporary” absence due to illness or injury, defined as a continuous period of 3 months or a total of 3 months in a 12-month period. This period is longer if the employee is on workers compensation and in those cases will vary depending on the applicable state legislation.
However, the expiry of the “temporary” period does not give the employer an automatic right to terminate the employee. The employer is required to have a valid reason for dismissing an employee to ensure it is not unfair. When an employee is absent and has not returned to work for an extended period of time, typically an employer will turn to the “inherent requirements” provisions that permit an employer to terminate an employee due to illness or injury if the employee is unable to perform the inherent requirements of the role. The question for the employer becomes: “how do I assess whether or not the employee can perform the inherent requirements”?
The case law essentially establishes that an employer can require an employee to attend a medical assessment to determine the employee’s fitness for work “when it is reasonable to do so”.
In the Federal Court decision of Australian and International Pilots Association v Qantas Airways Ltd  FCA 32 at , the Court held that [emphasis added]:
“…. it was essential for an employer to be able to require an employee, first, where necessary, to furnish particulars and or medical evidence affirming his or her continuing fitness to undertake duties and, secondly, where there was a genuine indication of a need for it, on reasonable terms, to attend a medical examination to confirm his or her fitness. “
Often the employer does not have the available evidence to determine whether or not the employee is capable of performing their role. This issue often arises where an employee has provided a medical certificate that does not specify the employee’s capacity or prognosis, and the employee does not agree to provide further medical information when requested by the employer.
In a case before the Federal Circuit Court last year, the Court found that an employee could not unilaterally decide whether or not he should be independently medically assessed in relation to the ability to perform the inherent requirements of their role. The case is authority for the principle that, where it is reasonable for an employer to require a medical examination, a direction for the employee to attend that examination is reasonable and lawful, and a failure to attend can amount to grounds for termination of employment.
Lessons for Employers
- Generally speaking, an employer is entitled to seek medical information to determine if an employee is safely able to fulfil the inherent requirements of their role.
- Often this arises following a significant illness or injury and where there are concerns about the person’s capacity to return to their pre-injury role.
- There is not however a general and broad reaching entitlement that allows employers to require employees to participate in medical assessments for any reason. The purpose of the assessment must be clear and bear an obvious relationship with the employee’s ability to do their job.