Can an employer require an employee to prove physical fitness for work?

“The issue whether or not it is reasonable for an employer to direct an employee to provide medical evidence regarding the employee’s capacity to perform his or her duties was considered by Madgwick J inBlackadder v Ramsey Butchering Services Pty Ltd (Blackadder v Ramsey Butching). 98 Madgwick J held:
“An employer has, as indicated above, strict obligations under the NSW legislation to ensure the safety and well-being of its employees. The importance of occupational health and safety is also reflected in the Act. Whilst an AWA, in general, prevails over conditions of employment specified in State laws to the extent of any inconsistency, provisions which relate to certain matters, such as occupational health and safety, operate subject to any relevant State law (see s 170VR(2) of the Act).
It is, in my opinion, essential for compliance with the above duties, that an employer be able, where necessary, to require an employee to furnish particulars and/or medical evidence affirming the employee’s continuing fitness to undertake duties. Likewise, an employer should, where there is a genuine indication of a need for it, also be able to require an employee, on reasonable terms, to attend a medical examination to confirm his or her fitness. This is likely to be particularly pertinent in dangerous work environments. Abattoirs entail obvious risks, among other things, of injuries from the repetitive use of knives at speed, and to the spinal column from the necessity to twist, bend and/or lift.
The question whether it is reasonable for an employer to request an employee to attend a medical examination will always be a question of fact as will the question of what are reasonable terms for the undertaking of the medical examination. The matters will generally require a sensitive approach including, as far as possible, respect for privacy. Nevertheless, I assume that there now should be implied by law into contracts of employment terms such as those set out in the first two sentences of the preceding paragraph, on the basis that such terms pass the test of “necessity” accepted by McHugh and Gummow JJ in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 450.” 99
These principles were applied by Goldberg J in Thompson v IGT (Australia) Pty Ltd 100 (Thompson v IGT) and by Rares J in Australian and International Pilots Association v Qantas Airways Ltd 101 (AIPA v Qantas).
In Thompson v IGT, the applicant had a history of back and neck issues, both which resulted in surgery. The applicant also underwent open heart surgery for a congenital heart condition. Between 2001 and 2008, the applicant was away from work on a number of occasions. The employer wrote to the applicant in the following terms:
“Further to this conversation and those previously held with your line manager regarding your regular absenteeism and your Performance Review, IGT would like to attain clarity as to your current medical situation and its impact on your ability to undertake your role of Video Artist/Animator on a full-time basis within the Product Development & Compliance department at our site in Mulgrave, Victoria. … In order for IGT to assess your situation against its duties and responsibilities to you, IGT requires you to provide a detailed medical report from your primary physician or specialist by Friday 26 October 2007 which details the following:
1. your current medical condition/s;
2. current and anticipated future medication and therapeutic regime including dosage, frequency and duration of treatment, and estimates of work time lost as a result;
3. any work restrictions which may apply to you undertaking your role currently or in the foreseeable future, and
4. an estimated time for recovery.” 102
Later, the employer wrote to the applicant in the following terms:
“In light of your correspondence we thought you would find it helpful if we set out the process that IGT follows in circumstances where an employee is suffering from an illness or injury and there are concerns about that employee’s fitness for work.
1. IGT will ordinarily approach the employee to discuss the injury/illness and concerns about capacity.
2. The employee may be invited to provide information about their capacity and matters that impact upon capacity (including medical information). A report from your treating practitioner is not mandatory but in our view will assist.
3. IGT may refer the employee to an independent medical practitioner who is not an employee of IGT and is not part of an ongoing relationship with IGT. …”
… In addition, if you also choose to obtain a medical report from your treating practitioner/s, then IGT will cover the reasonable costs of your treating practitioner/s for producing such a report.”
Goldberg J, applying the principles in Blackadder v Ramsey Butchering, held:
“As I have already noted, an employer has an obligation under the Occupational Health and Safety Act 2004 (Vic) to provide a safe place of work. In carrying out and discharging that obligation, an employer may, from time to time, need to assess and determine whether an employee suffers from a disability that might affect his work. The employer might need to have regard to the nature and consequences of the employee’s disability in relation to the workplace in which the employee works.” 103
Further:
“I consider such circumstances to be present here, where there is a history of absences due to a medical condition, where there are inconsistencies in the information available to the employer in relation to the state of the employee’s health, and where there are a number of absences for which no details or reasons have been given. In this respect, I refer again to the absences that occurred on and between 5 December 2007 and 6 May 2008.
In my opinion, it was reasonable, and probably necessary, for the respondent in this case to find out more about the applicant’s condition, which included the obtaining of a report from a psychiatrist, especially having regard to the unexplained absences.” 104
The case of AIPA v Qantas concerned a Qantas flight crew member who suffered from clinical depression. In July 2012, the employee, a flight crew member, provided a medical certificate to his employer stating that he was suffering clinical depression and was unfit for normal work until October 2012. In October 2012, the employee provided another medical certificate which stated that he was suffering a medical condition and was unfit for work until January 2013. Subsequently, the employer wrote to the employee stating that:
“You are required to provide a written report from your treating doctor. This report should clearly indicate your diagnosis, prognosis, capacity to return to your pre-injury duties and the anticipated time-frame.” 105
The employer later wrote to the employee the following:
“You have been unable to fulfil the inherent requirements of your role and have been absent from work for more than 149 days. The information you have already provided indicates that you are suffering from a medical illness. However I have little other information in relation to the expected duration of your absence and when, if ever, you will be able to safely return to work.
I am aware that there may be some sensitivities in disclosing the specifics of your diagnosis at this time. Qantas is continuing to discuss this with AIPA. In the meantime, you are required to provide me with a written report from your treating doctor by no later than Wednesday 9th January 2013 that addresses the following:
• your current ability to safely carry out the requirements of your role as a Pilot;

• what job functions are affected by your current condition;

• your ability to return to work on restricted duties and a timeframe during which that would be possible;

• the prognosis and likely timeframe for a return to full duties;

• what, if any, reasonable accommodations could be made to enable a return to work; and

• are there any other issues that may affect your ability to safely return to full duties.” 106

Rares J, applying the principles in Blackadder v Ramsey Butchering, held:
“I am of opinion that it would be quite unrealistic to expect Qantas to be left no ability, as an employer, information of the kind it sought her to require a sick employee to provide it with substantively no right to information about the present and future position of a crew member who had been on extended sick leave. The uninformative medical certificates, other than his first, that Dr Massie gave told Qantas nothing about how to plan for [the employee’s] absence or return to work beyond his not being there for a period that might or might not be further extended. There is no suggestion in the evidence that Qantas took the action it took for any reason involving an intention to prejudice [the employee] in the enjoyment of his rights to obtain and receive sick leave under cl 31 of the agreement.
Qantas’ requirements were reasonable requirements and were made solely for the purpose of assisting it in understanding how it would need to deal with [the employee] in terms of matters to which Capt Miller’s evidence referred. Qantas required [the employee’s] co-operation in order to make the operational side of the relationship work, both for [the employee] and for Qantas. [The Employee], no doubt at the behest of the Association, withheld that co-operation without lawful justification.” 107
See also Hinchen v Moonee Valley Racing Club –(2016) FWC 2176 delivered 6 April 2016 per Cirkovic C