It has always been a question of when a direction by an employer in accordance with an employment contract will be lawful. The Fair Work Commission recently addressed this issue in Bertus Moers v The Trustee For Williamson Family Trust [2025] FWC 1344.

Background

Mr Moers raised concerns in relation to bullying, non-payment of bonus payments, unrealistic work and job expectations and issues with work health and safety (among other things) with the employer. Some time later, Moers was asked to attend a disciplinary meeting after ‘concerns’ about his conduct were raised. Moers was offered the option to have a support person present at the meeting and was told the meeting would involve discussions about a performance improvement plan.

Moers took leave to care for family in New Zealand and following this took medical leave, with no detail being provided in the medical certificates or by Moers about the illness. In November 2024, following various medical certificates with conflicting details to Moers accounts, the employer provided Moers with a letter which included a “lawful and reasonable direction” to consent for the employer to write to the general practitioner to request a review of Moers work capacity. Moers responded to the employer that he did not want the employer to contact or liaise with his doctor. Moers also questioned whether the request to do so was legal. Moers also raised concerns about his bonus payments, which the employer had previously advised would be dealt with upon his return to work.

Moers sent a follow up email to the employer after receiving no response, again advising that he would not be signing the authorisation for the employer to speak with the general practitioner. The employer responded the following day stating that it was necessary to contact Moers’ doctor to understand his capacity to return to work, given the limited detail provided in the medical certificates. The employer referred to clause 3 of the employment contract, which provided that Moers would agree to participate in any medical examination that was relevant to the employment. With Moers providing no response, the employer provided a further extension for the consent form to be returned. When Moers again failed to respond, a termination letter was issued by the employer terminating the employment on the basis of serious misconduct for failure to follow a lawful and reasonable direction.

Was the direction to authorise correspondence with doctor lawful and reasonable?

The employer maintained that the direction to authorise the employer to correspond with the general practitioner was lawful based on the employment contract terms. Moers acknowledged that the employment contract did contain terms relating to medical examination as well as that he must follow lawful and reasonable directions of the employer. Moers advanced an argument that “you cannot contract out of rights, and therefore if a contractual term falls outside the law then it is not legally enforceable”.

Moers stated that he did not object to his doctor filling out a questionnaire, but it was the “request for medical information and direct contact with his doctor” that he did not agree with.

The employer referred to Swanson v Monash Health [2018] FCCA 538, where it was found that a direction by an employer to undergo a medical examination constitutes a lawful and reasonable direction where the employee has been on a period of personal leave.

The Commission found that “the direction of the Respondent for the Applicant to facilitate the provision of the information by the method it proposed was a lawful and reasonable direction, as it was consistent with what had been agreed to between the parties about the provision of medical information. If it were not for the contract of employment, such a direction would not be lawful and reasonable in the absence of the Applicant’s consent”.

The Commission did not accept Moers argument that the request for the information from the doctor was retaliation following him questioning the company’s conduct. It was found to be “fair for the Respondent to dismiss the Applicant without notice because the Respondent believed on reasonable grounds that the Applicant’s conduct was sufficiently serious to justify immediate dismissal”. Moers was advised of the potential consequences of failing to comply with the direction, but still did not comply.

Lessons for employers:

• Where an employment contract provides for a certain direction to be made by an employer, this will likely be deemed to be a lawful and reasonable direction. This case shows that employers can give employees a direction to provide consent for the employer to correspond with a medical practitioner in relation to an employee’s illness impacting their ability to return to work if such a direction is authorised in the employment contract.
• Prior to termination for a failure to follow a lawful and reasonable direction, ensure that you give the employee an opportunity to respond to the direction.
• Provide the employee with clear information regarding the consequences of a failure to comply with the direction.
• Ensure the employee is aware of the employment contract clause allowing the direction and bring this to the employee’s attention.

If you would like assistance in reviewing your contracts, please contact our office and we will be happy to assist you.