Australia: Federal Court upholds implied contractual right to require medical evidence for long-term sick leave

In Australian and International Pilots Association v Qantas Airways Ltd [2014] FCA 32 (6 February 2014), the Federal Court of Australia held that Qantas had an implied contractual right to seek detailed medical information from a pilot (Mr Kiernan) who had been on long-term personal/sick leave.

The Court also found that Qantas had not taken adverse action (in breach of Part 3-1 of the Fair Work Act 2009 (Cth) (FW Act)) when it threatened to discipline the pilot for failing to provide a report from his treating doctor on his prognosis and ability to return to full duties.

The decision provides useful guidance for employers in an area which is notoriously difficult to manage.

FACTS

Mr Kiernan's employment was governed by the Qantas Airways Limited Flight Crew (Long Haul) Certified Agreement 2005-2006 (Agreement). The Agreement provided that, after an employee had taken a certain amount of sick leave, Qantas could require the employee to produce a medical certificate or other evidence of personal illness or injury.

Sick leave commences

In July 2012 Mr Kiernan commenced sick leave, having provided a medical certificate stating that he was suffering from clinical depression and would be unfit for work until 11 October 2012. Mr Kiernan's treating doctor also stated that he had contacted the Civil Aviation Safety Authority and requested that Mr Kiernan's pilot licence be suspended until his condition stabilised. Mr Kiernan had a substantial amount of accrued personal leave.

Further medical certificates, and Qantas requests further information

A further medical certificate was provided in October 2012, simply stating that Mr Kiernan was "suffering a medical condition and will be unfit for normal work" up to 10 January 2013. As it appeared that Mr Kiernan would remain unfit for work for a considerable period, Qantas requested that he provide a written report from his treating doctor, clearly indicating his:

  • ability to safely carry out the requirements of his role as a pilot, or return to work on restricted duties;
  • prognosis and likely timeframe for return to full duties (including any reasonable accommodations needed to enable this to occur).

The Australian International Pilots Association (AIPA) then wrote to Qantas asserting that the airline had no lawful basis on which to request a medical report containing such details at that time, noting that Mr Kiernan had a substantial amount of accrued personal leave (approximately 129 days as at December 2012). AIPA also stated that Mr Kiernan had complied with all applicable evidentiary requirements contained in the enterprise agreement and section 107 of the FW Act.

Possibility of disciplinary action

There then followed further correspondence between AIPA and Qantas, provision of another medical certificate (in similar terms to that provided in October 2012), and three further written requests from Qantas to Mr Kiernan requesting the more detailed medical information. Importantly, these written requests also contained a direction that a failure to provide the information sought may result in disciplinary action being taken against Mr Kiernan, including termination of his employment. The final request directed Mr Kiernan to show cause as to why he should not be subjected to disciplinary action.

PROCEEDINGS COMMENCED

In February 2013, AIPA commenced proceedings against Qantas seeking a declaration that the company had contravened section 340(1)(a)(ii) of the FW Act, by taking adverse action against Mr Kiernan in the form of threats to take disciplinary action against him for reasons including that he had exercised a workplace right.

SUBMISSIONS

AIPA

AIPA submitted that provision of a medical certificate in accordance with the terms of the Agreement was a benefit to Mr Kiernan (and therefore a workplace right), as it obviated the need for the employee to provide any other evidence of unfitness for duty. Moreover, because the Agreement enabled Qantas to require an employee to produce a medical certificate after a certain amount of sick leave had been taken, it was unnecessary to imply a contractual term relating to provision of medical information (as contended for by Qantas).

On the grounds that the provision of a medical certificate was a benefit according a workplace right, AIPA submitted that the threats by Qantas to take disciplinary action against Mr Kiernan amounted to adverse action (i.e. injuring him in his employment, or altering his position to his prejudice). Further, this action had been taken because Mr Kiernan was exercising his workplace right of relying on the medical certificate provided.

Qantas

Qantas' evidence focussed on the operational reasons for which it had required Mr Kiernan to provide the information requested; for instance, that it would assist Qantas in understanding when, if ever, he would be able to return to work in a full-time or part-time capacity and, if so, what adjustments Qantas might be required to make in its business and rostering arrangements, and what re-training he would require. The information provided in Mr Kiernan's medical certificates did not allow Qantas to determine these matters.

DECISION

Justice Rares of the Federal Court dismissed AIPA's application, finding that:

  • It was necessary to imply a contractual right to allow Qantas to require its pilots to provide medical evidence of the kind it sought from Mr Kiernan, which arose from both the obligations imposed on the company by the Agreement and the Work Health and Safety Act 2011 (NSW). The Court relied on an earlier decision of Justice Madgwick in Blackadder v Ramsey Butchering Services Pty Ltd (2002) 188 FCR 395 in support of the implication by law of such a term into employment contracts.
  • The sick leave entitlements of an employee under statute, an enterprise agreement or an award do not displace the contractual relationship, under which the employer can make the necessary business arrangements to adjust for the impact of an employee's absence on sick leave and the employer's obligations under work health and safety legislation.
  • Requiring Mr Kiernan to furnish the information did not interfere with his workplace right to provide a medical certificate in support of an entitlement to sick leave. The information sought related to matters which were not dealt with by the relevant provision in the Agreement.
  • The purposes for which Qantas requested further medical information from Mr Kiernan – including roster allocation and planning his return to work – were legitimate and proper. Qantas did not take this action in order to prejudice Mr Kiernan in the enjoyment of his rights to obtain sick leave under the Agreement.
  • A statement that an employer is contemplating disciplinary action in the future does not constitute adverse action. In any event, there was nothing in the evidence that pointed to Qantas having any intention to interfere with Mr Kiernan's entitlements regarding sick leave.

WHAT DOES THIS MEAN FOR EMPLOYERS?

In managing employees on extended sick leave, or who have exhausted sick leave entitlements but remain absent from work, the decision supports an employer's right to request the provision of detailed medical information in certain circumstances.

In order for this implied contractual right to arise, any applicable enterprise agreement or award must not be exhaustive on the issue; and, importantly, the information requested must be for legitimate operational or business purposes and to enable the employer to comply with its obligations under work health and safety legislation.

A more recent decision of the Fair Work Commission provides further support for employers in dealing with long-term employee absence due to illness or injury. In Grant v BHP Coal Pty Ltd [2014] FWC 1712 (14 March 2014), Commissioner Spencer upheld the dismissal of an employee who had refused to attend a medical assessment by the company's doctor in order to assess the employee's fitness to return to work.

Employers should note, however, that the Commissioner also found that BHP Coal should have provided the employee with a clearer explanation as to why it was necessary to submit to an assessment by the company's doctor, when the employee's doctor had cleared him to return to work.

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.

Most awarded firm and Australian deal of the year
Australasian Legal Business Awards
Employer of Choice for Women
Equal Opportunity for Women
in the Workplace (EOWA)

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions