Directing an employee to attend an independent medical assessment

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by Mark Cox, Gemma Little and Lauren Wright

Directing an employee to attend an independent medical assessment

The winter months often bring an increase in employees’ use of personal leave, primarily due to illness. An employee’s brief and temporary absence, whether due to illness or even injury, supported by adequate medical evidence, can usually be managed by the employer without issue.

However, difficulty and uncertainty arise when an employee takes extended personal leave with medical evidence that has little or no detail on the illness or injury suffered, or which offers no foreseeable return to work date. An employee’s extended absence can pose significant issues for the management and operation of a business. Navigating this situation can become increasingly complex if an employee has taken personal leave in response to a disciplinary or performance management process.

This issue can raise questions for both employers and employees:

  • As an employer, you may be wondering whether you can direct an employee to attend an independent medical assessment (IMA) to obtain medical information to enable you to properly manage your business; and
  • As an employee facing such a direction, you may be questioning whether your employer has the right to require you to attend an IMA.

Contractual entitlement  to direct an employee to attend an IMA

Ideally, an employer’s right to direct an employee to attend an IMA will be expressly stated in the employment contract. Employers should review their existing employment contracts and consider seeking legal advice to ensure they have a contractual right to direct an employee to attend an IMA to assess their fitness for work.

Further, in the absence of an express right to do, the respondent has an implied right to direct the applicant to attend a medical assessment to assess fitness for work: Blackadder v Ramsay Butchering Services Pty Ltd [2002] FCA 603 at [67]-[69].

In Thompson v IGT (Australia) Pty Ltd [2008] FCA 994 at [49], Goldberg J said:

It is also an established principle that it is reasonable to direct an employee to attend a medical examination to determine whether the employee is fit to perform his or her duties and whether he or she can do so safely.

This has been recently applied in Swanson v Monash Health [2018] FCCA 538 at [50], Jones J said:

In my opinion, Thompson also stands for the proposition that there are freestanding common law rights of an employer implied as a term of the contract of employment, arising from their obligations under the relevant State occupational health and safety laws, to provide a safe place of work for their employees, which includes a right to require an employee, on a reasonable basis, to attend an IMA [independent medical assessment].

The respondent has strict obligations to provide its employees with a safe working environment under the Occupational Health and Safety Act 1984 (WA) and at common law.

Failure to comply with an employer’s lawful and reasonable direction may provide a basis to terminate employment.

In the context of a direction to attend an IMA, whether the direction is lawful and reasonable is fact-specific and is determined on a case-by-case basis. This involves weighing up a number of factors, some of which are set out by the Fair Work Commission in Daniel Cole v PQ Australia Pty Ltd [2016] FWC 1166.

These factors include:

  • the source of the right of the employer to direct to attend an IMA (e.g. in the employment contract, workplace policies or enterprise agreement);
  • the length of the employee’s absence;
  • the adequacy of the existing medical evidence;
  • whether the employee is acting inconsistently with the medical evidence;
  • the impact of the employee’s absence on the employer’s ability to manage its business;
  • whether the employer has explained their concerns to the employee and the basis for requesting that the employee attend an IMA;
  • the terms of the medical assessment e.g. if the medical assessor has been properly briefed on the matters to be assessed and the request for information goes no further than required in the circumstances.

Poor management of ill and injured employees can have significant negative implications from both a practical business perspective and a legal-risk perspective. It is important to seek legal advice at an early stage to ensure that the process is properly managed. This will ensure that the impact on business is minimised, as well as the risks associated with the legal claims that an employee may make in this area. MDC Legal can assist both employers and employees to navigate the management of extended absences.