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When can you insist that an employee attend a medical examination? by Eva Rickert

Employment Law

It is good practice to include a clause in your employment contracts entitling you to reasonably require your employee to undergo a medical examination. What if you don’t have such a clause in your contracts?

In short, an employer’s work health and safety obligations will often justify requiring an employee to undergo a medical assessment prior to continuing work.  

In the recent Fair Work Commission (FWC) decision of Mr Darrin Grant v BHP Coal Pty Ltd [2014] FWC 1712 the FWC had to decide whether an employer acted unfairly when it terminated an employee who refused to provide evidence of a medical clearance before returning to work after a long period of absence due to illness. The company had asked the employee to attend a medical assessment with a chosen medical specialist prior to returning to work; however the employee failed to attend the appointment even after being warned that disciplinary action would follow if he refused. The employee was then terminated for refusing to follow reasonable directions to participate in the assessment and subsequently brought an unfair dismissal claim against the company.

The FWC found that the employee had not been unfairly dismissed as the employer acted according to its duty to ensure that the workplace is safe, given the dangerous nature of the mine and the employee’s medical condition.

The FWC held in favour of the employer on the basis that all employment contracts have an implied term that an employee must comply with lawful and reasonable direction. Further, that given the dangerous nature of the work that the employee was performing, the employer had an express statutory obligation under the Coal Mining Safety and Health Act 1999 to ensure the health and safety of its employees.