Adverse action and the direction to attend medical assessments

WHO SHOULD READ THIS

• Employers who want to direct an employee to attend an independent medical assessment.

THINGS YOU NEED TO KNOW

• Employers have a right to direct an employee to attend an independent medical assessment, including when an employee is absent on personal leave, provided the direction is lawful and reasonable.

WHAT YOU NEED TO DO

• When considering whether to direct an employee to attend an independent medical examination, employers should ensure that the direction is reasonable and lawful having regard to the circumstances.
• It is advisable to seek legal advice if unsure.

The Federal Circuit Court (Court) has confirmed that employers can direct an employee to attend an Independent Medical Assessment (IMA), even when an employee is absent from work on personal leave and that the exercise of a workplace right does not include the right not to work.

Background

In the recent matter of Swanson v Monash Health [2018] FCCA 538, the Court held that an employer’s actions in dismissing an employee who refused a direction to attend an IMA during a period of paid personal leave did not amount to adverse action. The Court held that the employer’s direction was lawful and reasonable, and that the employee’s refusal amounted to serious misconduct warranting summary dismissal.

The Applicant alleged that her employer, Monash Health, had taken adverse action in threatening to and ultimately summarily terminating her employment. The Applicant was on paid personal leave and had been absent from work for a lengthy period of time after she had made a complaint of bullying and harassment. The employer offered the Applicant two alternative positions and directed her to attend an IMA on three occasions. The Applicant rejected the offers of alternative employment and refused to attend the IMAs, arguing she was exercising a workplace right not to work which included a right to refuse directions made by her employer to attend an IMA. The employer dismissed the Applicant and argued that the reason for the Applicant’s termination was not her exercise of a workplace right to take personal leave, but her failure to comply with lawful and reasonable directions by the employer that she attend an IMA.

Decision

The Court held that the sole reason for the employer’s decision to terminate the Applicant’s employment was that the Applicant had engaged in serious misconduct by refusing three lawful and reasonable directions to attend an IMA. The fact that the Applicant was exercising a workplace right at the time of her refusals (i.e. paid personal leave), formed no part of the employer’s decision to terminate her employment.

The Court also held that employers have a common law right, resulting from their work health and safety obligations, to require an employee on paid personal leave to attend an IMA ‘to confirm the employee’s incapacity to perform work’. The direction must be reasonable having regard to the circumstances of the case.

The Court rejected the Applicant’s argument that an employee has a right not to work, or a right not to follow directions during personal leave, stating that the employment contract remains on foot during any period of leave and employers can give lawful and reasonable directions to employees during this time.

Key lessons

This decision confirms that employers can direct employees to attend IMAs while an employee is on paid personal leave, (provided that the direction is reasonable and lawful), and that an employee is still bound by their employment contract (including the duty to follow lawful and reasonable directions) during periods of paid personal leave.

To protect against adverse action claims, employers should ensure that the reason for the termination of an employee’s employment is the failure to follow a reasonable and lawful direction and not the exercise of a workplace right, such as taking paid personal leave.

With the expansion of our Employment Relations and Safety practice into Sydney, we would like to introduce you to Partner Scarlet Reid and her specialist team, including Senior Associates Tom Reaburn and Nathan Roberts. Find out more about the Employment Relations and Safety team here.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.