When can an employer direct a worker to attend a medical appointment?

It is a well-established employment law principle that a worker must follow the lawful and reasonable instructions of their employer.

A recent decision of the Federal Court in Grant v BHP Coal[1] has upheld the dismissal of a worker for refusing to undergo a medical examination by a company-nominated doctor.  A Queensland boilermaker, who had undergone surgery for a work-related shoulder injury, was cleared by his GP as “fit to return to normal duties” after 8 months’ sick leave.  His superintendent directed him to see a company-nominated occupational physician to assess his fitness before he resumed work.  The worker refused and was eventually sacked.

The Court did not have to consider whether an employer has an implied contractual right to order a worker to undergo a company medical examination (in the sense that it was not an unlawful direction and, accordingly, fell within the scope of the contract of employment).  Here, the broad obligations under Queensland’s coal mining legislation for mine safety and management applied and makes it clear that a mine worker could be required to undergo a medical examination in cases where there might be a risk to the safety and health of the worker and other mine workers because of his injury.

The case does not stand for the general proposition that every direction by an employer to a worker to attend a medical examination with a doctor chosen by the employer will be reasonable.  Whether such a direction is reasonable will depend on the circumstances of each case.  For example, a worker may only have been sick for a short period of time, or may have already given sufficient information to their employer about their illness.  In this circumstance, it is unlikely that a direction to attend a specific doctor would be reasonable.

If an employer was uncertain of a worker’s health status and had genuine concern as to their fitness to perform their job safely, a lawful direction to the worker to attend a medical assessment could be given as it could be argued that there is a genuine and legitimate operational reason for doing so.

Employers have strict and onerous obligations to ensure the health and safety of their workers while at work.  Because of these obligations, various courts and tribunals have recognised, in some circumstances, an employer has a right to compel or demand a worker attend an independent medical assessment so they can determine the worker’s fitness for their duties.  Any refusal by the worker to do so may expose them to the risk of disciplinary action up to and including dismissal.

An employer cannot exercise this right arbitrarily; they have an obligation to provide “procedural fairness” in the particular circumstances of the case.  This includes the employer giving the worker adequate notice of the medical appointment that they require them to attend.  Furthermore, procedural fairness also requires that the worker be allowed the opportunity to secure their own medical opinion if they do not agree with the opinion provided by the employer’s doctor.

The doctor conducting the assessment should be provided with a thorough description of the work duties to enable them to assess appropriately whether or not the worker’s disability, illness or injury will affect their ability to undertake those duties.  The medical assessment will consider whether the worker is medically fit to perform the inherent requirements of their job and if any adjustments could be made to the role to enable the worker to perform their position.  It would be unreasonable for an employer to embark on a “fishing expedition” by asking unnecessarily broad questions of the doctor, such as asking for a complete medical history when the medical issue is more confined.

Can an employer obtain medical reports on their workers without their knowledge or consent?

The short answer is NO.

The federal government’s Merit Protection Commissioner has recently ruled[2] on a “secret medical” on a paper-based assessment from a doctor of a public servant who had not been informed that his mental health was being examined.  The public servant had not worked since 2011 as a result of claimed bullying and harassment suffered whilst employed by the Department of Human Resources.  A doctor’s report was commissioned to assess work fitness and was done without the public servant’s knowledge or consent.  The Commissioner found that the Department breached its legal obligations when it handed the public servant’s medical file to the doctor asking for an assessment.  The Commissioner’s office ordered the Department to discard the “file assessment” on its employee finding that it failed its legislative requirement to act in a fair and reasonable manner.

Does an employer have the right to attend a medical appointment with a worker?

The short answer is NO.

The current advice on the Fair Work Ombudsman’s website is:

Employers attending medical appointments

We don’t consider it reasonable for an employer to go to a medical appointment with an employee unless an employee requests this.

We also don’t consider it reasonable for an employer to contact the employee’s doctor for further information.

Source reference: Fair Work Act 2009 (Cth) Section 107

[1] Grant v BHP Coal Pty Ltd [2017] FCAFC 42 (10 March 2017)

[2] “’Secret medicals’ on public servants unlawful, authority rules”: The Canberra Times 16 March 2017, page 8

Written by Bill McCarthy, Special Counsel. If you have any questions about this article, or about your rights when it comes to medical appointments, please contact us.