Picture this.
As a HR Manager, you have received a complaint about an employee’s conduct, or maybe it’s time for that long-delayed conversation about their performance.
You arrange an initial meeting to advise them of the issue and what the process will be like from here. You have barely finished outlining the nature of the concerns as sensitively as you can, when the employee strides out of the meeting, declaring they are going on stress leave. They may or may not also claim you are bullying them. And that’s before the worker’s compensation claim.
Sound familiar?
It is quite likely the employee will then be absent for a lengthy period, providing generic medical certificates describing them as being ‘unfit for work’.
In the meantime, and let’s say the complaint is about alleged inappropriate conduct or even sexual harassment, you have a distressed complainant, who having found the courage to come forward, now finds the matter to be in limbo for an indefinite period.
The usual advice in these circumstances is to respect the employee’s entitlement to access their accrued personal leave, subject to provision of medical certificates. An accepted worker’s compensation claim will complicate things further. But there will come a point where the question arises, especially if their entitlement to paid personal leave has been exhausted: when will a direction to attend an independent medical examination be both lawful and reasonable and thus defensible?
The Fair Work Commission has recently re-iterated that a direction to attend an Independent Medical Examination (IME) arranged by the employer was a lawful and reasonable direction, failure to comply with which constitutes a valid reason for dismissal:
‘given that the (employer) was inquiring about the (employee’s) capacity to work after being absent for over a year. If the (employer) is unable to assess the capacity of an employee after a long absence, then it will be assumed that the employee will not have the ability to complete the inherent requirements of the role’: Sophia (Marttea) Baker v Bodhicorp Pty Ltd ATF The Gadens Service Trust No 2 T/A Gadens Lawyers Brisbane [2024] FWC 2503 at paragraph 22.
This case had a long history. It follows an earlier decision of Deputy President Lake: Sophia (Marttea) Baker v Bodhicorp Pty Ltd ATF The Gadens Service Trust No 2 T/A Gadens Lawyers Brisbane [2024] FWC 924.
Ms Baker originally lodged her application in October 2018 with the Commission, seeking an unfair dismissal remedy. After numerous delays (64 months from staff conciliation to the April hearing) due to the Applicant’s filing of numerous medical certificates, the matter was listed for various pre hearing steps, and ultimately the employer’s request for the matter to be brought on for hearing was granted.
Importantly, the Commission stated (at paragraph 37 of the April decision):
‘The employer can question the capacity of the employee if they are not attending work for a prolonged period. A year is a sufficient period of time to request an IME. It appeared to be a lawful and reasonable request… [38] the Applicant’s continual failure to comply with this request was a valid reason for dismissal. The Respondent’s process indicates that they had tried to accommodate the Applicant in attending the IME appointments and had given her multiple opportunities before dismissal’.
This confirms what has been clear for some time, and certainly since the decision of the Federal Court in Australian and International Pilots Association v Qantas Airways Limited [2014] FCA 32.
Whilst each case will depend on its own facts, as a matter of general principle, an employer is entitled to reasonably require evidence of fitness as to whether an employee can perform the inherent and genuine requirements of the role, with or without reasonable adjustments.
Depending on the circumstances it may not be reasonable to direct an employee to an independent medical examination until the employer has first requested a report from the employee’s treating practitioner. If that request is refused or the report is inadequate, then it is more likely to be reasonable to direct the employee to attend an independent medical examination.
What is clear, however, is that if the direction is both lawful and reasonable, then failure to comply with that direction can provide a valid reason for termination of employment.
This was the ultimate outcome of the September decision, which followed the employee filing some hundreds of pages of submissions and further medical certificates, but failing to attend a hearing scheduled for April this year.
So, what are the lessons for employers?
Closely monitor and manage absences in these types of circumstances but be led by the medical evidence. At some point (which will vary depending on the facts of each case) it will be reasonable to seek more detailed information than what is provided by a generic medical certificate so decisions can be made about which of the duties of their role the employee can perform safely with or without reasonable adjustments.
In many cases, that information should, at first instance, be asked of the employee’s treating doctor(s). If the employee does not consent or the information provided is vague and inadequate, then a direction to attend an IME may be appropriate, despite what the employee’s representatives are telling you. And if the employee refuses to comply with that direction, it may indeed provide a valid reason for dismissal. Of course, procedural fairness must be observed at all stages.
Source: Lexology
