Fred hasn't being coming to work. His medical certificate states that he is "unfit". But what does this mean? How can you accommodate this in your workplace? Will it be safe for him to return to his normal duties when he returns? These are dilemmas facing many employers. In the recent decision Australian & International Pilots' Association v Qantas Airways, the Federal Court provides answers to some of these questions.

Background

Mr Kiernan, a pilot employed by Qantas, provided medical certificates stating that he was "unfit for normal work" for a total period of approximately seven months. Qantas requested that Mr Kiernan provide a medical report setting out his diagnosis, prognosis, capacity to return to pre-injury duties and the anticipated timeframe. This request was made on the basis that Qantas needed to know when Mr Kiernan would be able to safely return to work. The information was also necessary for work rosters, which were prepared several months in advance.

Mr Kiernan's union disputed Qantas' entitlement to such a report. However, Qantas persisted with its request, threatening disciplinary action if the report was not provided. In response, the union issued legal proceedings. It alleged that by threatening to discipline Mr Kiernan after he had provided a medical certificate stating he was unfit for work, Qantas had taken adverse action against Mr Kiernan.

Findings

The Court dismissed the proceedings. It held that the provisions in the Fair Work Act 2009 and any applicable enterprise agreement requiring an employee to provide a medical certificate or other evidence of being unfit for duty, were not the only sources of the employer's right to require medical evidence from an employee.

The Court stated that employers also had an implied right to require employees to provide sufficiently detailed medical information to enable employers to comply with their obligations under work health and safety legislation. These obligations included the need to provide a safe workplace and safe systems of work.

Additionally, the Court found that the employer's right to medical information was necessary to enable them to make operational arrangements to deal with employee absences. In the Court's view, basic medical certificates failed to assist employers to plan for absences or rehabilitation to the workforce. Consequently, the Court stated that it was unrealistic for employers to have no right to obtain information about the diagnosis and prognosis of employees on extended sick leave.

Exercising your right to know

Step 1: Ensure that it is reasonable and necessary to request further medical information from an employee. A request will generally be reasonable and necessary where:

  • an employee is taking a significant amount of sick leave
  • a worker has an injury that affects their ability to carry out their duties in a safe manner, and/or
  • the further information is necessary to enable you to address your operational requirements or comply with your obligations under the work health and safety legislation.

Step 2: Review your enterprise agreement or employment contracts to ensure that there is no limitation as to the type of medical information that you can request from your employees.

Step 3: Limit your request for information to what is necessary to assist you to address the matters in step 1. This is likely to include information that will enable you to understand the employee's condition, its cause, the prognosis and their ability to return to pre-injury duties. It may also include requiring the employee to attend a medical examination.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.