An employer will have a valid reason to terminate the employment of an employee if he or she unreasonably refuses to attend a medical examination to determine whether the employee is reasonably able to perform the inherent requirements of the job on the basis that the employer has the right to issue lawful and reasonable instructions.
“There are authorities dealing with the question of whether a direction by an employer
for an employee to attend an IME or to provide medical information can be lawful and
reasonable directions.
[93] The Full Federal Court in Blackadder v Ramsey Butchering Services Pty Ltd56 found
that an employer also has a right to request an employee to attend an IME if there is genuine
indication of a need for it and it is reasonable for your employer to make such a request. In his
decision, Madjwick J made the following observations:
[68] It is, in my opinion, essential for compliance with the [Occupational Health and
Safety Law] 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. …
[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.
[94] In Thompson v. IGT,
57 Goldberg J noted it was well established that it was reasonable
to direct an employee to attend a medical examination to determine whether the employee is fit
to perform duties and whether they can do so safely. These duties were underpinned by
occupational health and safety legislation.
[95] In Fard v. Royal Melbourne Institute of Technology,
58 the Applicant’s employment was
terminated effective immediately as a result of “disciplinary action for serious misconduct”.
The termination followed a failure to comply with directions to attend an IME on three
occasions.
[96] Cirkovic C found there was no evidence to suggest the Applicant was given insufficient
notice to attend the IMEs. On the contrary, she found there was a series of communications
between the Applicant and the Respondent during which the Respondent made repeated
requests for the Applicant to attend an IME to gather appropriate information as to the Applicant
medical status and ability to return to work. On each occasion the Applicant did not make
contact and did not attend.
[97] Cirkovic C found the IME directions were both lawful and reasonable and the
Applicant’s failure to attend was a sound and defensible reason for the termination of the
Applicant’s employment. She therefore found this was a valid reason for the termination.
Findings
[98] There are at least three lawful directions given by the Respondent to the Applicant:
(a) The 31 March direction to attend the IME on 24 April 2023;
[2023] FWC 2906
20
(b) The 11 May direction to provide dates in the next two months where he could attend an
IME; and
(c) The direction to attend the show cause meeting.
The directions were reasonable
[99] For the following reasons I find those directions are not only lawful but reasonable.
[100] The Applicant had been absent from work for over two years. The capacity and
prognosis on the medical certificates remained unchanged since April 2021.
[101] It was legitimate for the Respondent as part of its planning for the 2023/4 financial year
to enquire as to the prognosis and fitness for work of the Applicant.
[102] In January 2023, he was asked to request his treating GP to complete a questionnaire on
his medical condition. The Applicant in his evidence expressed privacy concerns relating to
some of the questions. Given his views about IMEs being “intrusive” and “an interrogation”, it
was open for him to discuss with his own doctor the preparation of a medical report for the
Respondent that did not offend his privacy issues.
[103] The Applicant’s failure to respond to this request meant the directions to provide
evidence of his medical condition escalated beyond a request from his treating GP. Three
months later, on 31 March 2023, the Applicant was directed to attend the IME.
[104] After the time scheduled for IME appointment, at 5:27 PM that evening the Applicant
provided a medical certificate that he was “incapacitated for work”. I find that this was an
attempt to explain his failure to attend the IME. It demonstrates some capacity to respond.
[105] The 11 May Direction was to indicate whether he was prepared to attend an IME in the
next two months or any date he was not available to attend an IME by telehealth. He did not
respond to that letter.
[106] Finally, the Show Cause letter was issued which required him to attend a show cause
meeting. He did not attend or respond to the Show Cause letter in any way.
[107] As I understand, the argument of the Applicant is that he was not in a “fit state to respond
to e-mails”, that he did not appreciate receiving “snarky” e-mails from the Respondent and he
had “requested not to be contacted by management” outside of the “necessary people”, and that
these e-mails “disregarded his request”.
[108] There is no medical evidence before me of any incapacity of the Applicant to respond
to e-mails or to attend to an IME. His failure to respond was in circumstances where the
employer was requesting information regarding his medical condition and his prognosis from
January to May 2023.
[109] The Applicant’s position appears to have been the Respondent would be notified at some
indeterminate point when he was able to respond about his prognosis and that he could dictate
[2023] FWC 2906
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which management employees from the Respondent he would talk to and when he would talk
to them.
[110] In all the circumstances this position was unreasonable and not consistent with his
obligations as an employee to comply with lawful and reasonable directions and to comply with
IME requests.
Finding on valid reason
[111] In the circumstances of this case and relying on the decisions relevant to lawful
directions to provide medical information or to attend IMEs, I find the dismissal by reason of
the Applicant’s failure to comply with the lawful and reasonable directions was sound,
defensible and well founded. I am therefore satisfied that there was a valid reason for his
dismissal.”
Passages taken from Lee v Origin Energy [2023] FWC 2906 delivered 3 November 2023 per Perica C
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