Employer rights; directing an employee to be medically examined

An employer has a common law right to direct an employee to attend and be examined by a medical practitioner to aid the employer in determining whether the employee is capable of performing his or her duties. The employer may issue a lawful and reasonable instruction for the employee to do so, and a failure to comply (if the direction is lawful and reasonable in the circumstances) will constitute misconduct, probably warranting dismissal.

That the employee might be taking personal leave for illness or the effects of an accident is not to the point and the employee does not have the tight to decline to comply if the arrangements (for example, that the employer will bear the cost) offered by the employer are reasonable.

Furthermore in Swanson v Monash Health (2018) FCCA, the Federal Circuit Court rejected the employee’s argument that an employee has a workplace right not to work, or a right not to follow directions during personal leave, reasoning that the employment contract remains on foot during any period of leave and employers can give lawful and reasonable directions to employees during this time.