When can an Australian employer direct an employee to attend a medical examination?

In this case, an employer requested a senior manager to undertake a medical examination after the employee’s extended absence. The direction was considered to be a lawful and reasonable direction by the tribunal, as it was consistent with what the parties had agreed to in the employment contract, namely that the senior manager agreed to participate in any medical examination relevant to his position and employment.

However, the direction may not have been lawful and reasonable unless the senior manager either provided express consent, or if there was an express provision to comply with such a direction in the employment contract.

In October 2024, the senior manager notified the company’s general manager, with one week’s notice, that he was travelling to New Zealand and requested to work remotely. The request was made a week after the senior manager had a meeting with the general manager and the sales manager, where he raised concerns about the company’s processes, including that: the company was not providing bonus payments; he was being contacted outside of work hours; he was set unrealistic time frames; and he had been unfairly reprimanded by the business owner. The senior manager also expressed concerns about workplace health and safety, insufficient training and some administration treatment that felt like bullying.

The following day, the general manager refused the senior manager’s request to work remotely given the short notice period and the logistical difficulties in accommodating overseas work. The general manager suggested that the senior manager take annual leave instead.

Two days after the refused request, the senior manager was invited to a disciplinary meeting regarding his performance and conduct. On the day of the disciplinary meeting, the senior manager messaged the general manager informing him that he was unwell and unable to attend the disciplinary meeting. The senior manager would later email the general manager, after being asked to provide a medical certificate, stating that he was taking carers leave.

After being informed that he would need to provide evidence of any carers or sick leave he was taking, the senior manager provided a medical certificate certifying him as unfit for work. He continued to submit further medical certificates covering up to 31 December 2024, with the last certificate claiming that he could attend to certain tasks remotely.

Given the inconsistencies in the senior manager’s stated reasons for absence and the lack of detail in the medical certificates, the general manager requested that his general practitioner complete a capacity review form so that the company could properly evaluate the senior manager’s capacity to perform their role.

When making the request, the company provided a letter and forms which contained questions relating to the senior manager’s capacity. The questions focused on information about: 

• whether there are aspects of the senior manager’s role that it would not be safe to carry out, and whether there are matters he can attend to; 
• how long the limitations would be, and if the limitations are temporary or permanent; and 
• whether special measures could be introduced that would enable the senior manager to safely carry out their duties. 
• The senior manager refused the request because he did not believe the request was “legally binding”.

The general manager reminded the senior manager that the employment contract required him to participate in any medical examination relevant to the position and employment to a standard the employer required. After further warnings, which the senior manager did not respond to, the employer summarily terminated the senior manager on 10 December 2024 for serious misconduct because he refused to carry out a lawful and reasonable direction.

The senior manager in the tribunal argued that he was not lawfully required to consent to his medical or personal information being accessed through a medical examination. In his view, the dismissal was unfair and a breach of privacy legislation, because his refusal to undertake this direction was reasonable and lawful. The senior manager also argued that there were alternative motivations for the company to dismiss him such as performance issues, and that he had been instructed to drink alcohol in order to cope with increased stress.

The company argued that the senior manager had consented to undertaking medical examinations in connection with his employment and role, and that the information being sought by the company was limited to matters relevant to the senior manager’s capacity to safely carry out his duties. The company also argued that the senior manager’s conduct prevented the company from complying with its duty of care to ensure, so far as is reasonably practicable, the health and safety of workers while the workers are at work.

The Fair Work Commission rejected the senior manager’s arguments, finding that the employment contract provided that the employee must disclose medical information relevant to his fitness for work. On that basis, the direction to facilitate the provision of information was a lawful and reasonable direction, as it was consistent with what had been agreed to between the parties.

Notably, the Commission stated: “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”.

In terms of the unfair dismissal claim, the Commission did not accept that the company’s medical examination request was some form of retaliation against the senior manager to silence him or that the dismissal was because of an illness, injury or disability. 

The Commission was satisfied that the senior manager’s conduct was sufficiently serious to justify immediate dismissal, with the Commission also noting that the dismissal would not be found to be unfair because:

• the senior manager was on notice about the consequences of refusing to cooperate with the company about its request and his contractual obligations; 
• the senior manager was given further opportunity to respond to the request for the medical examination, which he did not engage with; and  
• the company was attempting to discharge its duty of care and workplace health and safety obligations.  

Implications for employers 

Employers have considerable health and safety obligations. Under current legislation, employers are expected to ensure the physical and psychosocial safety of their employees and other workers, so far as reasonably practicable.

An employer is not always able to terminate the employment relationship because an employee refuses to follow a direction. The direction needs to be lawful and reasonable.  Such a basis may include where an employer is discharging its workplace health and safety duties. The failure to follow the direction may also constitute serious misconduct.

Interestingly, according to this decision, a direction to provide medical information and undertake a medical examination that verifies an employee’s fitness for work may not automatically be considered a lawful and reasonable direction. Accordingly, employers should update their employment contracts and policies to ensure that they have the power to request medical information from an employee. If employees agree to this term in the contract, then such a direction will likely be easier to enforce as lawful and reasonable.

Even when this term is included in the employment contract, employers should use it with caution and only require the employee to disclose information relevant to their role rather than their entire medical history. Additionally, a direction to provide medical information should only be issued when necessary, such as when an employee is returning after a long absence.

Finally, if employers plan to dismiss a worker for failure to follow a reasonable and lawful direction, they should be mindful of the reasons justifying dismissal.

Factors such as whether the employee was dismissed because of an illness, disability or injury, and whether the dismissal was a form of retaliation will be considered by the tribunals and courts.

The burden is on the employer to demonstrate sound reasons for summary dismissal, such as a failure to follow the terms of an employment contract.

Co-written by Andrew Herlinger of Pinsent Masons.