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Do employees have a right to refrain from working or not comply with directions while on personal leave?

Employment Law

A recent Federal Circuit Court decision found that employees must continue to comply with reasonable directions whilst taking paid personal leave.


In Swanson v Monash Health [2018] FCCA 538 (Swanson), the Employee took personal leave due to sickness. During her absence, she provided medical certificates stating that she was unfit for work, however the certificates were lacking in detail.

The Company arranged three appointments with an independent medical practitioner for the Employee to be assessed for fitness for work. The Employee refused to attend all of the appointments. The Employee argued that because she was on personal leave, she could not be directed to work or to attend the appointments. The Company instead argued that each direction to attend an appointment was a lawful and reasonable direction.

After a period of time, the Company dismissed the Employee because she failed to comply with the directions given to her. The Employee then lodged a General Protections Application alleging that the reason for her dismissal (or at least a substantial and operative reason for the dismissal) was that she had exercised a workplace right, being a right to not work during her personal leave. The right asserted by the Employee included a perceived right to not comply with directions from the Company while on personal leave.


The Court rejected the Employee’s argument that she had a workplace right to not work during her personal leave, or to not comply with Company directions while on personal leave.

Further, the Court rejected the idea that the Employee was “on a break” from her obligations under the Contract while on personal leave. Instead, the Court found that the terms of the Employee’s contract continued on.

The Court agreed with the Company’s argument that it had a duty to provide the Employee with a safe workplace. Those obligations are implied in the Employee’s contract, and are also contained in work health and safety legislation (such as the Work, Health and Safety Act 2011 (NSW)).

To comply with its duty, the Company has a right to, where reasonable, require the Employee to attend a medical examination to confirm the Employee’s incapacity to perform work. On that basis, the directions to attend the independent examinations were lawful.

The Court also stated that whether a direction is ‘reasonable’ will depend on the circumstances. In this case, the Court found that the directions were reasonable, considering things such as:

  1. the Employee alleged she was unfit for work due to work-related injury;
  2. the Employee’s medical certificates were lacking in any detail;
  3. the Employee had been on personal leave for an extensive period; and
  4. the Employee had not provided any evidence that she was unable to attend an independent examination.

Ultimately, the Court dismissed the Employee’s application because it found that the reason for her dismissal was her unwillingness to comply with the Company’s directions, rather than because she exercised a workplace right.

Implications for employers:

For employers, it is important to know that employees are not excused from their employment obligations while they are on personal leave. Terms within their employment contract will continue to apply, such as obligations relating to confidential information and restraint of trade (if those terms exist).

Employers can continue to provide lawful and reasonable directions to employees, including during times when the employee is on personal leave. However, while a direction to attend a medical examination is lawful (because of the employer’s duty to provide a safe workplace), the circumstances will influence whether such a direction is reasonable. This is an important area to seek advice on, particularly as there can be a risk of an employee making a claim for adverse action.

If you have an issue with an employee on personal leave, speak to our experienced employment lawyers at Atkinson Vinden today.


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