IN BRIEF
Employers are increasingly becoming aware that allowing an employee to return to work after suffering an injury, especially a non-work related one, can be risky business. If an employee returns to work before they are fit to do so and consequently aggravates his or her condition, the employer may find they are liable for a workers' compensation claim.
A recent case has found that in order to protect both parties it is not unreasonable to direct an employee returning from injury to attend a medical assessment with a physician of the employer's choice before commencing back at work.
The Fair Work Commission has upheld a decision by Peak Downs Mine's management to dismiss a worker for failure to attend a medical assessment after an eight month absence from work due to injury. During the period of absence there had been no evidence of specific steps taken by the worker to prepare for his return to work other than returning to the site with a medical certificate stating that the worker was receiving treatment for a "medical condition".
Due to the limited and non-specific documentation relating to the employee's injury, management sought to satisfy itself that the worker was in fact fit to return to work on a mine site, which involved performing potentially dangerous work. In order to confirm this management directed the worker to attend an appointment with a specialist doctor who was specifically trained as an occupational physician, and possessed knowledge of mining operations. The worker failed to comply with the direction to attend the appointment on a number of occasions, and felt that management had no lawful basis upon which to direct him to attend a medical appointment.
The Commission in its decision however stated that an employer has an implied obligation to ensure a safe system of work and a duty of care to all those on their worksites, specifically in relation to their employees. In light of this obligation, the employer's concern regarding whether or not the worker was fit for work was a reasonable concern.
Further, the employer was a coal mine operator and therefore also had a statutory obligation to ensure the health and safety of their employees. Under the statutory obligation the Commission held that it was reasonable for management to require the worker to see a specialist of their choosing in order to satisfy compliance with their duties and obligations owed to employees.
The decision demonstrates that employers do enjoy some rights in protecting their business as they are able to direct an employee to attend a medical assessment before returning to work. Importantly, a refusal by the employee to do so may be held to be unreasonable thereby entitling the employer to terminate them.
For further information please contact:
Warwick Ryan, Partner
Phone: +61 2 9233 5544
Email: wpr@swaab.com.au
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