Independent medical examinations and fair work cases

Employers have the implied right irrespective of an express right to do so in an employment contract to issue a lawful and reasonable direction for an employee to attend an independent medical examination if the are objectively reasonable grounds for an employer to do so. A failure to do so can constitute serious misconduct justifying dismissal.

Extract from

“Legal Principles

[57] It is a well-established at legal principle that an employer may give a lawful and reasonable direction, and an employee is obliged to obey the employer’s lawful and reasonable direction. 64

[58] In Blackadder v Ramsey 65 Madgwick J considered the issue of a requirement of an employer in New South Wales for a reinstated employee to undergo a medical examination before reporting for work. I have produced part of his honour’s findings below:

“[67] 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 AW A, 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 l 70VR(2) of the Act).

[68] 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.

[69] 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) 185 CLR 410 at 450.” 66

[59] For a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust or unreasonable. In considering whether it is so satisfied, the Commission must take into account the matters specified in section 387. I will address each of these matters in turn below.

Section 387(a) – Valid reason

[60] The Act directs consideration of whether there was a valid reason for the dismissal related to the person’s capacity or conduct. A valid reason is one that is “sound, defensible or well-founded” and not “capricious, fanciful, spiteful or prejudiced.” 67

[61] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 68 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).69 A failure to follow an employer’s lawful and reasonable direction can constitute a valid reason for dismissal.70

……………………………………Consideration

[67] In the recent decision in Roman v Mercy Hospitals Victoria Ltd (Roman) 77, Deputy President Colman discussed the concept of lawful and reasonable directions as follows:

“Implied into the contract of employment is an obligation of an employee to obey the employer’s lawful and reasonable directions (Bayley v Osborne (1984) 4 FCR 141 at 145). The requirement that the direction be lawful has two dimensions. One is that the employer cannot demand that an employee act unlawfully. The other is that the direction must be within the scope of the contract of employment (see R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 at 621-2 per, Dixon J). The latter reflects the ‘general rule … that a contract by which a person is employed in a specific character is to be construed as obliging him to render, not indeed all service that may be thought reasonable to render, but such service only as properly appertains to that character’ (see Commissioner for Government Transport v Royall (1966) 116 CLR 314 at 322, per Kitto J).” 78

[68] In Roman, the Deputy President identified two dimensions required in order for a direction to be lawful. I am satisfied that the request for the Applicant to attend an IME on 28 July 2021, 13 September 2021 and 13 October 2021, involved no illegality, and fell within the scope of the contract of employment. I accept that the IME directions issued on 28 July 2021, 13 September 2021 and 13 October 2021 were lawful directions. The Applicant had been absent from work on sick leave for an extended period. The Direction to attend an IME was essential to the Respondent’s ability to inform itself as to the Applicant’s fitness for work and, in light of my comments below, was necessary to investigate the Applicant’s mental state given the concerning comments made by the Applicant during the meeting of 29 April 2021.

[69] Ms Blee gave evidence that following the Applicant’s “war” and “kill” comments, “RMIT has a duty of care under occupational health and safety legislation to understand the risk associated with such comments.” I observe that Ms Blee impressed me as a forthright and candid witness who gave her evidence in a direct and cogent manner consistent with her witness statement and I have accepted this evidence. Further, I note the Respondent’s responsibilities to ensure a safe workplace for students, educators and the Applicant. I have had regard to the obligations placed on the Respondent by the Occupational Health and Safety Act 2004 (Vic) to provide a workplace that is “safe and without risks to health”, to “monitor the health of employees” and to ensure that “persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer.” 79 I have had regard to the comments of Madgwick J in Blackadder that 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.”80 It follows that, I reject the Applicant’s assertions that the request for an IME was motivated by reasons other than those proffered by the Respondent.

[70] Having determined that the direction to attend an IME was lawful, I need to be satisfied that it was reasonable and, if it was reasonable, determine whether it was a valid reason for termination. I note that the Applicant does not seriously contest his statement made to Mr Lancaster, Dr Patterson and Dr Iyer in the meeting of 29 April 2021 that “when I go to class I am going to war. The students are waiting to kill me. You kill me and they get their free pass.” 81 It is instructive that these comments were made during a formal performance meeting at a time when the Applicant was aware that the Respondent was concerned with his performance. I do not accept what appeared to be attempts at hearing by the Applicant to mitigate the seriousness of the comments by providing “context”. I agree with Dr Patterson’s assessment that the comments made by the Applicant during the 29 April 2021 were “extreme” and “troubling.”82

[71] I have also had regard to the fact that:

•  The Applicant had been on paid personal leave for significant periods. First from 29 June 2020 to 17 November 2020 83, lasting some 20 weeks, and the second, commencing 3 May 2021 until 28 July 2021 (the first IME) and continuing to the date of his termination on 16 December 2021, lasting some 32 weeks.84 I note that during these substantial periods of paid leave, the Applicant only provided generalised medical certificates.

•  Aside from the 27 August 2020 file note of a conversation between RMIT and the Applicant, in which the Applicant stated he had “mental health issues,” 85 the Applicant never provided the Respondent with a diagnosis or a prognosis as to his medical condition or fitness to work.86 I note that the balance of the medical certificates supplied by the Applicant were of a general nature, certifying simply that the Applicant was “unfit for normal work”.

•  There was no evidence that the Applicant was unaware of the Respondent’s requests that he attend the IMEs on 28 July 2021 and 13 September 2021 (the first and second IME). As to the request to attend an appointment on 13 October 2021 (the third IME direction), I reject the Applicant’s assertion that he was not aware of the contents of the couriered letter from Ms Blee as it was delivered to his wife, Ms Abedkhah, and that the Applicant’s wife did not inform him of the contents of the letter nor his wife’s response to the letter on 13 October 2021. In this regard, I note the evidence before me that the courier delivering the correspondence produced a delivery docket stating, “signed by Amir” at 1:35PM on 11 October 2021 and a photograph of a male person holding the envelope. During cross examination, the Applicant concedes that the image was of himself holding the letter but stated that he “didn’t check everything” and that he knew at the time that the letter was “probably related to the IME process.” In any event, I note that the Applicant was aware from Ms Capper’s letter, sent later that day, that Ms Blee’s letter contained the third IME request.

•  I note the Applicant’s assertion that his General Practitioner, Dr Kevin Rose, wrote on the medical certificate dated 20 May 2021, that the Applicant “should have no contact with RMIT University.” 87 The Applicant did not produce any further medical evidence from Dr Rose aside from this limited statement. I agree with the Respondent that the Applicant cannot remain on sick leave for a lengthy period, provide generalised information as to an unspecified medical condition and refuse to communicate with the Respondent, or alternatively choose to communicate selectively. On the material before me, it is apparent that the Applicant was capable of corresponding with the Respondent whilst on paid sick leave as evidenced by his lengthy correspondence to the Respondent on 18 July 2021 and 1 August 2021.

•  There is no evidence to suggest that the Applicant was given insufficient notice to attend the IMEs. On the evidence before me, there was a series of communications between the Applicant and Respondent from the period 1 July 2021 to 11 October 2021 during which the Respondent made repeated requests for the Applicant to attend an IME in an effort to gather appropriate information as to the Applicant’s medical status and ability to return to work.

[72] I note the Applicant’s assertions that he authorised the Respondent to contact his medical practitioner to obtain medical information as to his medical condition. I have carefully reviewed the correspondence between the parties in evidence before me including the evidence of Ms Blee as to the correspondence sent to her dated 18 July 2021. 88 I am of the view that the Applicant’s offers to ask his medical practitioner to provide information are made subject to significant caveat in the form of not breaching his “privacy entitlements”. It is apparent from the correspondence that the Applicant was of the view that it was for him to determine those matters that were in breach of his “privacy entitlements” and those that were not. I disagree with the Applicant’s characterisation that he consented to his general practitioner providing medical information about his condition.

[73] I reject the Applicant’s assertions to the effect that he could not comply with the IME requests because the Respondent did not provide a MLCOA Fitness For Duty Consent Form (MLCOA form) with each of the IME requests. With respect to this submission, I accept Ms Blee’s evidence that a failure to receive the MLCOA form in each correspondence would not be an acceptable reason to not attend an IME. 89 I accept that the MLCOA form was sent to the Applicant with correspondence dated 1 July 2021, 10 September 2021 and 11 October 2021.90

[74] I note the Applicant’s assertions that the Shepard report supports his contention that the request for an IME was unlawful. I disagree with the Applicant’s characterisation of the findings of the report with respect to this matter. In any event, the issue for me is whether there is a valid reason for termination.

[75] As to the Applicant’s assertions that he was not provided with the legal basis for the IME directions, I note that Ms Blee and Mr Lancaster corresponded with the Applicant repeatedly stating that the IME directions were lawful and reasonable in accordance with the common law and the terms and conditions of the Applicant’s contract of employment. Further, Ms Blee sent correspondence to the Applicant on 10 September 2021 in which she “strongly encouraged” the Applicant to seek advice from a lawyer or his union if he was under the “misapprehension” that the Respondent did not have the ability to direct the Applicant to attend an IME. 91

[76] On the basis of the above, I find that the IME directions were both lawful and reasonable and in the circumstances before me, the Applicant’s failure to attend is a sound and defensible reason for the termination of the Applicant’s employment. I am satisfied there is a valid reason for termination. This weighs against a finding that the dismissal was unfair.

Section 387(b) – Notification of reason for dismissal

[77] The reason for the termination of the Applicant’s employment was provided in the correspondence sent to the Applicant dated 9 December 2021.

[78] On the basis of the material before me, I find that the Applicant was notified of the reason for dismissal before his dismissal. This weighs against a finding that the dismissal was unfair.

Section 387(c) – Opportunity to respond

[79] The Respondent provided the Applicant with an opportunity to respond to the allegations during and following the October workplace investigation. The Applicant was also offered, and accepted, a further opportunity to respond to the 9 December 2021 letter that provided the findings of the October workplace investigation. The Applicant provided his response in correspondence dated 14 December 2021.

[80] I am therefore satisfied that the Applicant was given a reasonable opportunity to respond. This weighs against a finding that the dismissal was unfair.

Section 387(d) – Unreasonable refusal by the employer to allow a support person

[81] I am satisfied that there was no refusal by the Respondent to allow the Applicant to have a support person present to assist at any discussions relating to his dismissal.

[82] I note that in the letter of 22 October 2021, that informed the Applicant of the commencement of the October workplace investigation and directed him to attend an interview with Mr Lancaster, the Respondent stated that “you are entitled to have a support person or union representative accompany you to the interview. Please notify the Investigator via email or telephone prior to the interview if you intend to have a support person or union representative join the videoconference.” 92

[83] Mr Lancaster repeated the invitation in correspondence to the Applicant on 25 October 2021. 93 This weighs against a finding that the dismissal was unfair.

Section 387(e) – Warning about unsatisfactory performance before dismissal

[84] In this instance the reason for dismissal does not relate to unsatisfactory performance. and as such section 387(e) is not relevant.

Section 387(f)(g) – Size of enterprise and absence of dedicated human resource management specialists/expertise likely to impact on procedures followed

[85] This is a large employer with dedicated human resource management specialists. I have considered the submissions of the parties and consider this a neutral factor in this case.

Section 387(h) – Other relevant matters

[86] Section 387(h) provides the Commission with broad scope to consider any other matters it considers relevant. It is well established that a dismissal may be “harsh, unjust or unreasonable”, notwithstanding the finding that there is a valid reason for the dismissal. 94 The gravity of an employee’s conduct and the proportionality of dismissal to that conduct are important matters to be taken into account. The Commission should consider all the circumstances and weigh the gravity of the misconduct and other circumstances telling against a dismissal being unfair with any mitigating circumstances and other relevant matters that might support the Applicant’s claim that the dismissal was harsh, unjust or unreasonable.95

[87] I have taken into account all the submissions put by both parties as to “other relevant matters” including the matters set out below, noting my earlier comments as to the Applicant’s status as a self-represented individual.

Personal & economic situation and length of service

[88] I have taken into account the impact of the termination on the Applicant’s life, the stress caused to the Applicant by the termination of his employment, the Applicant’s length of service, which was considerable at more than 20 years. I have also given consideration to the Applicant’s age and I note that whilst the consequences of the dismissal for the Applicant and his family are significant, this must be balanced against all the other circumstances.

Acts of employees of the Respondent and the genuineness of the Respondent’s request for an IME

[89] The Applicant has contended throughout the proceedings that, in essence, a series of actions have been taken by employees of the Respondent to concoct a “premeditated plan for [his] dismissal” 96 in which certain employees of the Respondent acted in concert to bring about the Applicant’s termination and exact “retribution” on the Applicant.97 For efficiencies sake, I have not re-produced the Applicant’s submissions with respect to these allegations.

[90] On the basis of the material before me, I find that the Applicant’s allegations are unfounded. There is no foundation for the suggestion that employees of the Respondent acted in concert to bring about the termination of the Applicant’s employment and that the request for an IME was motivated by reasons other than those proffered by the Respondent.

The Respondent’s breach of the IME Guidance policy

[91] The Applicant contends that the Respondent has not complied with the University’s IME Guidance policy (the IME guidelines) 98 in a number of respects with regard to the IME process. Again, for the sake of efficiency, I do not re-produce the Applicant’s submissions. The Respondent disputes the submission and states that in any event the IME guideline was, as its name suggests, a guideline and does not form part of the Respondent’s suite of formal policies.

[92] There is insufficient material before me to make a conclusive finding as to the legal status of the guideline. That said, in the circumstances before me, I find that any failure by the Respondent to follow the IME guideline does not impact my overall finding that the Applicant’s termination was not unfair. In coming to this decision, I note that the the alleged non-compliance with the guideline, even if made out, is of little or no significance. I have made findings that the Respondent was entitled to give the IME directions at common law without relying on policies. As such, the IME directions were lawful. Further, I have found that the IME directions were reasonable and that there was a valid reason for termination.

[93] The Applicant was repeatedly warned that his failure to comply with the IME directions may lead to disciplinary action up to and including dismissal. Regrettably, the Applicant chose the course of conduct which was to refuse to comply with the Respondent’s lawful and reasonable directives.

[94] I have found that the process adopted by the Respondent was fair. The Applicant was given every opportunity to respond to the Respondent’s request for an IME by attending any one of the three appointments made by the Respondent with Dr Redmond. In those circumstances, I find that any purported deficiencies in the Respondent’s failure to follow the IME guideline do not render the dismissal harsh, unjust or unreasonable.

Conclusion

[95] I have considered the comprehensive material before me and found there was a valid reason for termination and I am satisfied that the Applicant was afforded procedural fairness during the disciplinary process. Having regard to the totality of the matter, I am satisfied in all the circumstances that the Applicant’s dismissal was not disproportionate to the gravity of his conduct, nor was it harsh in any other sense.

[96] I am satisfied that the direction of the Respondent for the Applicant to attend an IME was a lawful and reasonable direction and that the Applicant failed to comply with a lawful and reasonable directive of the Respondent and that there was a valid reason for termination. I am satisfied that the Respondent communicated the reason for termination to the Applicant and that he was given an opportunity to respond. I have considered the other factors identified in section 387 and have considered them neutral. I have dealt with the matters raised by the Applicant under section 387(h) and found that any procedural defects in the Respondent’s failure to follow the IME guideline did not provide a compelling reason to find that the Applicant’s dismissal was harsh, unjust or unreasonable. I have also considered the Applicant’s age, length of service and personal circumstances.

[97] Having considered the material before me and the matters identified in section 387 of the Act, I find that the dismissal of the Applicant was not harsh, unjust and unreasonable.

[98] The Application is dismissed.”

Zokaei Fard v Royal Melbourne Institute of Technology (RMIT University) (2022) FWC 1375 delivered 31 May 2022 per Cirkovic C