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Can you insist an employee is assessed by a doctor you nominate?

By Charles Power

In a previous bulletin, I wrote about your potential to be exposed to a disability discrimination claim if you direct your employee to leave work on sick leave and not to return until a medical clearance has been given.

In Stefanac v Secretary, Department of Family and Community Services (2018), the employer was found to have committed disability discrimination because these actions were taken on the basis of a wrongly held assumption that the employee suffered from mental illness.

Recently the Fair Work Commission (FWC) confirmed your right to request an employee to undertake an independent medical examination to determine fitness for duty if you hold a reasonable belief that there may be some risk to the employee, other employees, or the public if the employee should return to work without such an examination.

The basis for this right is the general duty of care you owe all of your employees, underpinned by work health and safety legislation.

In Fitzsimmons v Alice Springs Town Council (2018) the FWC dealt with a dispute arising when an employee’s wages were docked because he initially refused to seek a medical clearance from a doctor nominated by the employer.

The employee unsuccessfully requested annual leave over the Christmas/New Year period. The employee then took paid and unpaid sick leave from mid-November until mid-January. On 15 December he was directed to attend a doctor nominated by the employer prior to his return to work. The employee obtained a medical clearance from his own doctor and did not attempt to see the doctor nominated by the employer.

He eventually did obtain clearance to return to work from the doctor nominated by the employer. However, the employer refused to pay the employee for his absence from work between the period between when he got clearance from his own doctor and that from the employer-nominated doctor.

The FWC ruled the direction to obtain medical clearance from the employer-nominated doctor was a reasonable and lawful direction, which was not complied with.

The FWC observed that:

“[W]hether a direction is reasonable and lawful will depend on the particular circumstances of the matter. There is no simple rule that all directions given will be lawful and reasonable. However, ignoring a direction that an employee might not like or pretending it was not given or thinking there is some way around it is not a proper response. A discussion with the person giving the direction and escalation of the issue if unresolved is the appropriate manner in which to deal with any concerns.”

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