This is an extract from a recent unfair dismissal case determined by the Fair Work Commission which deals with the legally tricky rights an employer has to delve into the medical status and history of an employee together with the legal implications of an employer’s policies and procedures.
“Relevant legislation
[45] Section 385 of the Act states:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[46] The first question is whether the dismissal was consistent with the Small Business Fair Dismissal Code (SBFDC). In the event I was to find it was not, I would then be required to go on and consider whether the Applicant’s dismissal was harsh, unjust or unreasonable pursuant to s.387 of the Act.
[47] There is no dispute that the Respondent is a small business. The employer submits that the dismissal was a summary dismissal based on serious misconduct. The relevant part of the SBFDC reads as follows:
“It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.”
[48] Regulation 1.07 of the Fair Work Regulations 2009 (Cth) defines serious misconduct as conduct including “refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment”.
[49] In the event that I was to find the dismissal was not consistent with the SBFDC it would be necessary to consider each of the matters in s.387 which reads as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person— whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
Evidence and Submissions
Privacy
[50] The Applicant submitted that the dismissal was unfair as, per the ‘Privacy Act 1998.’ I believe he intends to refer to the Privacy Act 1988 (Cth) (Privacy Act).
[51] The Applicant submitted that he is not lawfully required to consent to the access requested by the Respondent. He contended that while he understands that documentation is required from the treating general practitioner outlining his health status to support return to work after an extended health-related absence, the Respondent instead requested this, in addition to directing the Applicant to provide consent for direct access for correspondence.
[52] The Applicant believed that directing him to grant the Respondent consent to correspond with his GP so that “personal and medical information” could be accessed is a breach of the Privacy Act, and unfair grounds for dismissal.
[53] After the Applicant had stated that he did not wish to consent to the Respondent corresponding directly with his GP, the Applicant contended that Mr Anderzipf persisted with his request by sending an email that quotes his 2021 employment contract as grounds for gaining access to his personal and medical information.
[54] The Respondent submitted that it is not the case that Mr Anderzipf or the Respondent requested to speak directly to the Applicant’s treating practitioner, nor did it request access to the Applicant’s entire medical history. The information sought was appropriately limited to matters relevant to the Applicant’s capacity to safely carry out his duties.
Employment contract terms
[55] The Respondent contends that it held the belief that the Applicant’s failure to comply with its lawful and reasonable direction to participate in a medical capacity assessment constitutes serious misconduct.
[56] The Respondent contended that the direction was lawful on the basis that:
(a) the Applicant warrants in his employment contract at clause 3.1, that he:
“will agree to participate in any … medical examination relevant to your position and/or your employment with the Employer to the standard required of your position and the Employer”; and
(b) the Applicant acknowledges in his employment contract at clause 3.3, that the Employer:
“has offered to employ you and is willing to continue to employ you in reliance on the warranties and commitments you have made in this Agreement”;
(c) the Applicant agrees in his employment contract at clause 4.2(e) to:
“comply with all lawful and reasonable directions given to you by the Employer”;
(d) the employment contract also sets out that at clause 16.1 and 16.2 respectively that
“You must act in accordance with the work health and safety (WHS) legislation relevant to your State or Territory and the Employer’s WHS policies and procedures”41 and “If you are considered unfit to safely perform your duties, whether due to the effects of drugs and/or alcohol or for any other reason, you may be stood down immediately and the Employer may require you to undertake a medical examination and obtain a fitness clearance before allowing you to undertake any further work.”
[57] The Applicant confirmed during his oral evidence that he read the employment contact before he signed it. He accepted that the contract said that he would agree to participate in any medical examination relevant to his employment. He said he agreed to the terms of the contract because he wanted to get going.
[58] In the course of his cross examination, the Applicant indicated he believed there was another employment contract in addition to the one provided in evidence. The Applicant could not locate another employment contract, and the Respondent maintained there was no other employment contract. Based on the evidence, I am satisfied the only employment contract in existence is the employment contract provided in the evidence.
[59] The Applicant’s primary argument appeared to be that you cannot contract out of rights, and therefore if a contractual term falls outside the law then it is not legally enforceable. He accepted the contract required him to comply with any lawful and reasonable direction from the Respondent.
[60] The Applicant accepted his role was client facing and his role impacted the profitability of the business. He agreed he was directed to attend the meeting on Friday 11 October 2024. He said he chose to take sick leave that day as the situation was overwhelming and he was going to see his parents who needed his support. He accepted he had received the letter and spoke to “Vanessa” before he left for New Zealand. The evidence concerning why he was unfit for work on 11 October 2024 was vague. The message he sent to the Respondent said he “won’t be in today. I will be taking the day off, personal/sick leave.”
[61] The Applicant said the two days sick leave was to cover the two days he took off to be with his parents because the travel time was half a day each way. He agreed he took personal leave and sick leave from 11 October to 19 November and then 21 November to 31 December 2024. The Applicant accepted the medical certificates did not provide any specific detail as to why he was not fit for work.
[62] The Applicant was referred to the medical certificate of 20 November 2024 which said he was unfit for work, and if there were any matters that he requires to address this could be done remotely without him having to attend the office. The Applicant accepted this medical certificate would raise questions for the Respondent about whether the workplace was safe for him.
[63] The Applicant said he had no issues with the GP filing out a questionnaire however it was the request for medical information and direct contact with his doctor that he took issue with. He accepted the letter the Respondent sent to him included the questions that the Respondent proposed to ask his doctor. He went on to say that it could go beyond that. The Applicant accepted that the letter restricted the information solely to medical information related to his employment, and his current and future fitness to work, however went on to say it was his understanding that if he signed the letter it would have given open access to the Respondent for communication with his treating medical practitioner.
Leave taken
[64] The Respondent noted that the Applicant had purported to take carers leave, however, when evidence was requested to support this, the Applicant instead provided medical certificates certifying his own incapacity to work. The Respondent was of the view that the Applicant did not, at any material time in this matter, provide any evidence of the carers leave that would satisfy a reasonable person.
[65] On 16 October 2024, the Respondent emailed the Applicant to confirm that he was required to provide evidence of the requirement to take:
(a) carers leave for the period from 14 – 20 October 2024, by 23 October 2024; and
(b) personal leave for 11 October 2024, by 18 October 2024.
[66] On 17 October 2024 the Applicant provided a medical certificate for himself stating he was unfit for work from 11 October to 1 November 2024. The Respondent considered the medical certificate to be unsatisfactory evidence that the Applicant was required to take personal leave because of a personal illness or injury for the collective reasons that:
(a) the doctor back dated the certificate for 5 days prior to attending on the Applicant;
(b) the doctor provided his opinion on the same day that he attended on the Applicant via Telehealth and the Applicant provided no evidence of any additional tests, examinations or assessments that would have informed the doctors opinion that the Applicant was and would continue to be unfit for a significant period of 3 weeks and 1 day;
(c) the doctor did not provide any details of the Applicant’s medical condition;
(d) the doctor’s opinion did not align with the reasons the Applicant provided, that he was required to provide care to his mother;
(e) the Applicant did not advise the Respondent that he was personally unfit for work at any material time prior to providing the medical certificate;
(f) the Applicant further advised a customer, Mr David Kelland, that he was “in New Zealand supporting family and some friends”; and
(g) the Applicant’s Instagram account indicates that during the period for which the medical certificate covers, the Applicant appears to have capacity to engaged in “fun” and “adventure” activities.
[67] The Respondent submitted that in consideration of the distinct lack of information regarding the Applicant’s purported injury or illness, the lengthy period of leave taken for such
reason (from 11 October 2024 until 1 November 2024), and in lieu of satisfactory evidence of the Applicant’s requirement to take personal leave, the Respondent considered that it was appropriate to request that the Applicant provide a fit-for-work certificate to confirm that the Applicant was fit to return to work. The Respondent made this request to the Applicant on 18 October 2024 to ensure that the Applicant was provided with ample notice prior to his return date of 2 November 2024.
[68] The Respondent submitted that when the Applicant provided a further medical certificate for 20 November 2024 to 31 December 2024, the medical certificate did not:
(a) define or describe what the doctor meant by “matters”;
(b) provide any information that may assist the company to determine what, if anything, the Applicant can or cannot do;
(c) provide any information that may assist the company to conduct a risk assessment for Mr Moers and the company’s benefit; and
(d) provide any explanation as to why the Applicant was no longer considered fit to perform full duties as anticipated by the doctor in his previous certificate dated 16 October 2024.
[69] Further, the Applicant’s email (containing the medical certificate dated 20 November 2024) on 20 November 2024 stated that he had “an ear issue”, which did not assist the Respondent in any way to:
(a) conduct a risk assessment for the benefit of the Applicant and the Respondent;
(b) enable the Respondent to comply with its obligations under the Work Health and Safety Act 2011 (Qld); and
(c) enable the Respondent to consider what alternative duties the Applicant could be given.
[70] The Respondent submitted that it considered it needed further information from the Applicant’s medical practitioner in order to assess the Applicant’s capacity.
Reasonable and lawful direction
[71] The Respondent submitted that the reason for dismissal was that the Applicant failed to comply with a lawful and reasonable direction under his employment contract to provide further information, via his general practitioner, of his capacity to return to work. The Respondent submitted that the Applicant was made aware of the exact and limited information that the Respondent was seeking.
[72] The Respondent referred to the case of Grant v BHP Coal Pty Ltd4, where the Full Bench upheld Commissioner Spencer’s decision that there exists an ability to direct an employee to undertake a medical assessment, and that a failure to attend an assessment as directed constituted a failure to follow a lawful and reasonable direction.
[73] The Respondent also referred to the case of Swanson v Monash Health5 (Monash), where Jones J found that a direction to undergo an independent medical examination was lawful and reasonable in circumstances where the employee had been on personal leave. The employee
had provided one medical certificate which contained detail of her incapacity, after which the certificates did not contain any detail relating to her condition. In Monash, Jones J, considers Goldberg J’s decision in Thompson v IGT (Australia) Pty Ltd6 (Thompson) and took the view that Thompson ‘stands for the proposition that there are freestanding common law rights of an employer implied as a term of the contract of employment, arising from their obligations under the relevant State occupational health and safety laws, to provide a safe place of work for their employees, which includes a right to require an employee, on a reasonable basis, to attend an [independent medical assessment].’
[74] The Respondent submitted that it gave the Applicant 10 days (from 26 November – 5 December 2024) to sign a form to provide consent to the Respondent to contact the Applicant’s medical practitioner to arrange the medical assessment.
[75] The Respondent then gave the Applicant notice on 6 December 2024 that failure to comply with the direction would be considered serious misconduct and the Applicant’s employment may be terminated (Notice). The Respondent then gave the Applicant a further 3 days (until 9 December 2024) to provide the signed consent form. In total, the Respondent gave the Applicant 14 days to make enquiries with the Respondent and return the signed consent form.
[76] The Respondent submitted that due to the 14 day window that eventuated from the extensions provided, it was open to the Applicant to seek legal advice and make further enquiries and it should have been reasonably evident to the Applicant that the Respondent was willing to extend the deadline for the Applicant to return the authorisation form where the Applicant made enquiries with the Respondent.
[77] The Applicant did not respond to the Respondent’s Notice and did not provide the signed consent form by 9 December 2024 (or at all). The Applicant’s employment was terminated for serious misconduct on 10 December 2024.
[78] The Respondent submitted that it made all reasonable attempts to afford the Applicant an opportunity to make enquiries with the Respondent about the nature of the medical assessment and a reasonable period of time to respond and provide the consent form.
[79] The Respondent submitted that it reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business.
Statutory obligations
[80] The Respondent argued that the Applicant’s conduct unequivocally prevented the Respondent from complying with its legal duties under the Work Health and Safety Act 2011 (Qld) (WHS Act) and the Disability Discrimination Act 1992 (Cth) (DDA).
[81] The Respondent submitted it had a duty of care under s.19 of the WHS Act to ensure, so far as is reasonably practicable, the health and safety of workers while the workers are at work.
[82] The Respondent also noted that under s.28 of the WHS Act, the Applicant has a duty to:
(a) take reasonable care for his or her own health and safety; and
(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and
(c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act; and
(d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.
[83] Under s.6 of the DDA, the Respondent is required to consider what work, if any, it could provide to the Applicant, as well as reasonable adjustments that it could reasonably make. The Applicant’s medical certificate implies that the Applicant had capacity to perform “matters…remotely”
Other alleged reasons for dismissal
[84] The Applicant submitted that there were alternative motivations for the Respondent to dismiss him from employment. He submitted that while not included in the termination letter as grounds for dismissal, it was previously raised in an email dated 10 October 2024, that the Applicant had engaged in a number of behaviours that were grounds for a performance and conduct meeting.
[85] The Applicant believed that the performance accusations were made to silence the company misconduct that he was attempting to raise in the long meeting on the 2 October 2024. Specifically, on 2 October 2024, the Applicant submitted that he raised a number of company conduct concerns set out at paragraph [6].
[86] The Applicant alleged that during the meeting on 2 October 2024, he was instructed by management to drink alcohol in order to cope with increased stress. In addition, the Applicant stated he had raised these concerns a number of times previously. The Applicant submitted that the resulting stress following the meeting was a contributing factor to him taking extended leave.
Consideration
[87] The nub of this case is the question of whether the direction of the Respondent was lawful and reasonable. It is apparent the Applicant held a genuine concern that if he signed the letter consenting to his treating medical practitioner discussing his personal and medical information with Mr Anderzipf, that the discussion may not be restricted to information solely related to his employment, and his current and future fitness to work. In my view, the letter does restrict the information that may be shared with the Respondent to information only in connection with his employment and his current and/or future fitness for work. On that basis it is consistent with what he had agreed with the Respondent in his employment contract about his preparedness to participate in any medical examination relevant to his position and/or his employment with the Respondent, to the standard required of his position and the Respondent.
[88] The Applicant accepted he did not propose any alternative method to the Respondent as to how he could provide the information the Respondent was seeking in relation to his fitness for work. The Privacy Act 1988 and the Australian Privacy Principles set strict guidelines concerning the handling of personal information including medical records, and they provide that personal information can only be disclosed with consent. I am satisfied based on the terms of the contract of employment that the Applicant confirmed during his evidence that he had read, signed and agreed to, that it provided the consent of the Applicant to disclose medical information relevant to his fitness for work to the Respondent if required. The extent of information requested was within the scope of what was contemplated by the employment contract and not beyond its scope.
[89] On that basis, the direction of the Respondent for the Applicant to facilitate the provision of the information by the method it proposed was a lawful and reasonable direction, as it was consistent with what had been agreed to between the parties about the provision of medical information. If it were not for the contract of employment, such a direction would not be lawful and reasonable in the absence of the Applicant’s consent.
[90] I also do not accept based on the evidence that the step of the Respondent seeking medical information from the Applicant’s treating medical practitioner concerning his fitness for work was some form of retaliation against the Applicant to silence him because he had raised concerns about the company’s conduct. I also do not accept that the dismissal was because of the Applicant’s illness or injury, or because the Applicant had a disability.
[91] I am satisfied based on the evidence, it was fair for the Respondent to dismiss the Applicant without notice because the Respondent believed on reasonable grounds that the Applicant’s conduct was sufficiently serious to justify immediate dismissal. I am satisfied that the Respondent held the belief that the Applicant’s failure to comply with its lawful and reasonable direction to participate in a medical capacity assessment constituted serious misconduct, and considering the terms of the employment contract, it has a reasonable basis to hold that belief.
[92] As set out above, regulation 1.07 of the Fair Work Regulations 2009 (Cth) defines serious misconduct as conduct including “refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.”
[93] I am satisfied the dismissal was consistent with the SBFDC. For completeness I would add that had I found the dismissal was not consistent with the SBFDC, or that the SBFDC did not apply, I would have found the dismissal was not unfair in accordance with the considerations in s.387 of the Act. Taking into account the totality of the evidence including the safety and operational issues, the Applicant was on notice about the consequences of his refusing to cooperate with the Respondent about its request and his contractual obligations, the Applicant was given the opportunity to respond to the request, and he did not engage with the request. The Applicant was not denied a support person and the Respondent is a small business. The Respondent was attempting to discharge its duty of care and its workplace health and safety obligations.
Conclusion
[94] For the reasons set out above, the Commission does not have jurisdiction to deal with the application as the dismissal was consistent with the SBFDC. An order will be issued separately and concurrently with this decision to that effect.”
Moers v The Trustee For Williamson Family Trust [2025] FWC 1344 delivered 14 May 2025 per Simpson C
This is an extract from a recent unfair dismissal case determined by the Fair Work case which deals with the legally tricky rights an employer has to delve into the medical status and history of an employee together with the legal implications of an employer’s policies and procedures.
“Relevant legislation
[45] Section 385 of the Act states:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[46] The first question is whether the dismissal was consistent with the Small Business Fair Dismissal Code (SBFDC). In the event I was to find it was not, I would then be required to go on and consider whether the Applicant’s dismissal was harsh, unjust or unreasonable pursuant to s.387 of the Act.
[47] There is no dispute that the Respondent is a small business. The employer submits that the dismissal was a summary dismissal based on serious misconduct. The relevant part of the SBFDC reads as follows:
“It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.”
[48] Regulation 1.07 of the Fair Work Regulations 2009 (Cth) defines serious misconduct as conduct including “refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment”.
[49] In the event that I was to find the dismissal was not consistent with the SBFDC it would be necessary to consider each of the matters in s.387 which reads as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person— whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
Evidence and Submissions
Privacy
[50] The Applicant submitted that the dismissal was unfair as, per the ‘Privacy Act 1998.’ I believe he intends to refer to the Privacy Act 1988 (Cth) (Privacy Act).
[51] The Applicant submitted that he is not lawfully required to consent to the access requested by the Respondent. He contended that while he understands that documentation is required from the treating general practitioner outlining his health status to support return to work after an extended health-related absence, the Respondent instead requested this, in addition to directing the Applicant to provide consent for direct access for correspondence.
[52] The Applicant believed that directing him to grant the Respondent consent to correspond with his GP so that “personal and medical information” could be accessed is a breach of the Privacy Act, and unfair grounds for dismissal.
[53] After the Applicant had stated that he did not wish to consent to the Respondent corresponding directly with his GP, the Applicant contended that Mr Anderzipf persisted with his request by sending an email that quotes his 2021 employment contract as grounds for gaining access to his personal and medical information.
[54] The Respondent submitted that it is not the case that Mr Anderzipf or the Respondent requested to speak directly to the Applicant’s treating practitioner, nor did it request access to the Applicant’s entire medical history. The information sought was appropriately limited to matters relevant to the Applicant’s capacity to safely carry out his duties.
Employment contract terms
[55] The Respondent contends that it held the belief that the Applicant’s failure to comply with its lawful and reasonable direction to participate in a medical capacity assessment constitutes serious misconduct.
[56] The Respondent contended that the direction was lawful on the basis that:
(a) the Applicant warrants in his employment contract at clause 3.1, that he:
“will agree to participate in any … medical examination relevant to your position and/or your employment with the Employer to the standard required of your position and the Employer”; and
(b) the Applicant acknowledges in his employment contract at clause 3.3, that the Employer:
“has offered to employ you and is willing to continue to employ you in reliance on the warranties and commitments you have made in this Agreement”;
(c) the Applicant agrees in his employment contract at clause 4.2(e) to:
“comply with all lawful and reasonable directions given to you by the Employer”;
(d) the employment contract also sets out that at clause 16.1 and 16.2 respectively that
“You must act in accordance with the work health and safety (WHS) legislation relevant to your State or Territory and the Employer’s WHS policies and procedures”41 and “If you are considered unfit to safely perform your duties, whether due to the effects of drugs and/or alcohol or for any other reason, you may be stood down immediately and the Employer may require you to undertake a medical examination and obtain a fitness clearance before allowing you to undertake any further work.”
[57] The Applicant confirmed during his oral evidence that he read the employment contact before he signed it. He accepted that the contract said that he would agree to participate in any medical examination relevant to his employment. He said he agreed to the terms of the contract because he wanted to get going.
[58] In the course of his cross examination, the Applicant indicated he believed there was another employment contract in addition to the one provided in evidence. The Applicant could not locate another employment contract, and the Respondent maintained there was no other employment contract. Based on the evidence, I am satisfied the only employment contract in existence is the employment contract provided in the evidence.
[59] The Applicant’s primary argument appeared to be that you cannot contract out of rights, and therefore if a contractual term falls outside the law then it is not legally enforceable. He accepted the contract required him to comply with any lawful and reasonable direction from the Respondent.
[60] The Applicant accepted his role was client facing and his role impacted the profitability of the business. He agreed he was directed to attend the meeting on Friday 11 October 2024. He said he chose to take sick leave that day as the situation was overwhelming and he was going to see his parents who needed his support. He accepted he had received the letter and spoke to “Vanessa” before he left for New Zealand. The evidence concerning why he was unfit for work on 11 October 2024 was vague. The message he sent to the Respondent said he “won’t be in today. I will be taking the day off, personal/sick leave.”
[61] The Applicant said the two days sick leave was to cover the two days he took off to be with his parents because the travel time was half a day each way. He agreed he took personal leave and sick leave from 11 October to 19 November and then 21 November to 31 December 2024. The Applicant accepted the medical certificates did not provide any specific detail as to why he was not fit for work.
[62] The Applicant was referred to the medical certificate of 20 November 2024 which said he was unfit for work, and if there were any matters that he requires to address this could be done remotely without him having to attend the office. The Applicant accepted this medical certificate would raise questions for the Respondent about whether the workplace was safe for him.
[63] The Applicant said he had no issues with the GP filing out a questionnaire however it was the request for medical information and direct contact with his doctor that he took issue with. He accepted the letter the Respondent sent to him included the questions that the Respondent proposed to ask his doctor. He went on to say that it could go beyond that. The Applicant accepted that the letter restricted the information solely to medical information related to his employment, and his current and future fitness to work, however went on to say it was his understanding that if he signed the letter it would have given open access to the Respondent for communication with his treating medical practitioner.
Leave taken
[64] The Respondent noted that the Applicant had purported to take carers leave, however, when evidence was requested to support this, the Applicant instead provided medical certificates certifying his own incapacity to work. The Respondent was of the view that the Applicant did not, at any material time in this matter, provide any evidence of the carers leave that would satisfy a reasonable person.
[65] On 16 October 2024, the Respondent emailed the Applicant to confirm that he was required to provide evidence of the requirement to take:
(a) carers leave for the period from 14 – 20 October 2024, by 23 October 2024; and
(b) personal leave for 11 October 2024, by 18 October 2024.
[66] On 17 October 2024 the Applicant provided a medical certificate for himself stating he was unfit for work from 11 October to 1 November 2024. The Respondent considered the medical certificate to be unsatisfactory evidence that the Applicant was required to take personal leave because of a personal illness or injury for the collective reasons that:
(a) the doctor back dated the certificate for 5 days prior to attending on the Applicant;
(b) the doctor provided his opinion on the same day that he attended on the Applicant via Telehealth and the Applicant provided no evidence of any additional tests, examinations or assessments that would have informed the doctors opinion that the Applicant was and would continue to be unfit for a significant period of 3 weeks and 1 day;
(c) the doctor did not provide any details of the Applicant’s medical condition;
(d) the doctor’s opinion did not align with the reasons the Applicant provided, that he was required to provide care to his mother;
(e) the Applicant did not advise the Respondent that he was personally unfit for work at any material time prior to providing the medical certificate;
(f) the Applicant further advised a customer, Mr David Kelland, that he was “in New Zealand supporting family and some friends”; and
(g) the Applicant’s Instagram account indicates that during the period for which the medical certificate covers, the Applicant appears to have capacity to engaged in “fun” and “adventure” activities.
[67] The Respondent submitted that in consideration of the distinct lack of information regarding the Applicant’s purported injury or illness, the lengthy period of leave taken for such
reason (from 11 October 2024 until 1 November 2024), and in lieu of satisfactory evidence of the Applicant’s requirement to take personal leave, the Respondent considered that it was appropriate to request that the Applicant provide a fit-for-work certificate to confirm that the Applicant was fit to return to work. The Respondent made this request to the Applicant on 18 October 2024 to ensure that the Applicant was provided with ample notice prior to his return date of 2 November 2024.
[68] The Respondent submitted that when the Applicant provided a further medical certificate for 20 November 2024 to 31 December 2024, the medical certificate did not:
(a) define or describe what the doctor meant by “matters”;
(b) provide any information that may assist the company to determine what, if anything, the Applicant can or cannot do;
(c) provide any information that may assist the company to conduct a risk assessment for Mr Moers and the company’s benefit; and
(d) provide any explanation as to why the Applicant was no longer considered fit to perform full duties as anticipated by the doctor in his previous certificate dated 16 October 2024.
[69] Further, the Applicant’s email (containing the medical certificate dated 20 November 2024) on 20 November 2024 stated that he had “an ear issue”, which did not assist the Respondent in any way to:
(a) conduct a risk assessment for the benefit of the Applicant and the Respondent;
(b) enable the Respondent to comply with its obligations under the Work Health and Safety Act 2011 (Qld); and
(c) enable the Respondent to consider what alternative duties the Applicant could be given.
[70] The Respondent submitted that it considered it needed further information from the Applicant’s medical practitioner in order to assess the Applicant’s capacity.
Reasonable and lawful direction
[71] The Respondent submitted that the reason for dismissal was that the Applicant failed to comply with a lawful and reasonable direction under his employment contract to provide further information, via his general practitioner, of his capacity to return to work. The Respondent submitted that the Applicant was made aware of the exact and limited information that the Respondent was seeking.
[72] The Respondent referred to the case of Grant v BHP Coal Pty Ltd4, where the Full Bench upheld Commissioner Spencer’s decision that there exists an ability to direct an employee to undertake a medical assessment, and that a failure to attend an assessment as directed constituted a failure to follow a lawful and reasonable direction.
[73] The Respondent also referred to the case of Swanson v Monash Health5 (Monash), where Jones J found that a direction to undergo an independent medical examination was lawful and reasonable in circumstances where the employee had been on personal leave. The employee
had provided one medical certificate which contained detail of her incapacity, after which the certificates did not contain any detail relating to her condition. In Monash, Jones J, considers Goldberg J’s decision in Thompson v IGT (Australia) Pty Ltd6 (Thompson) and took the view that Thompson ‘stands for the proposition that there are freestanding common law rights of an employer implied as a term of the contract of employment, arising from their obligations under the relevant State occupational health and safety laws, to provide a safe place of work for their employees, which includes a right to require an employee, on a reasonable basis, to attend an [independent medical assessment].’
[74] The Respondent submitted that it gave the Applicant 10 days (from 26 November – 5 December 2024) to sign a form to provide consent to the Respondent to contact the Applicant’s medical practitioner to arrange the medical assessment.
[75] The Respondent then gave the Applicant notice on 6 December 2024 that failure to comply with the direction would be considered serious misconduct and the Applicant’s employment may be terminated (Notice). The Respondent then gave the Applicant a further 3 days (until 9 December 2024) to provide the signed consent form. In total, the Respondent gave the Applicant 14 days to make enquiries with the Respondent and return the signed consent form.
[76] The Respondent submitted that due to the 14 day window that eventuated from the extensions provided, it was open to the Applicant to seek legal advice and make further enquiries and it should have been reasonably evident to the Applicant that the Respondent was willing to extend the deadline for the Applicant to return the authorisation form where the Applicant made enquiries with the Respondent.
[77] The Applicant did not respond to the Respondent’s Notice and did not provide the signed consent form by 9 December 2024 (or at all). The Applicant’s employment was terminated for serious misconduct on 10 December 2024.
[78] The Respondent submitted that it made all reasonable attempts to afford the Applicant an opportunity to make enquiries with the Respondent about the nature of the medical assessment and a reasonable period of time to respond and provide the consent form.
[79] The Respondent submitted that it reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business.
Statutory obligations
[80] The Respondent argued that the Applicant’s conduct unequivocally prevented the Respondent from complying with its legal duties under the Work Health and Safety Act 2011 (Qld) (WHS Act) and the Disability Discrimination Act 1992 (Cth) (DDA).
[81] The Respondent submitted it had a duty of care under s.19 of the WHS Act to ensure, so far as is reasonably practicable, the health and safety of workers while the workers are at work.
[82] The Respondent also noted that under s.28 of the WHS Act, the Applicant has a duty to:
(a) take reasonable care for his or her own health and safety; and
(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and
(c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act; and
(d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.
[83] Under s.6 of the DDA, the Respondent is required to consider what work, if any, it could provide to the Applicant, as well as reasonable adjustments that it could reasonably make. The Applicant’s medical certificate implies that the Applicant had capacity to perform “matters…remotely”
Other alleged reasons for dismissal
[84] The Applicant submitted that there were alternative motivations for the Respondent to dismiss him from employment. He submitted that while not included in the termination letter as grounds for dismissal, it was previously raised in an email dated 10 October 2024, that the Applicant had engaged in a number of behaviours that were grounds for a performance and conduct meeting.
[85] The Applicant believed that the performance accusations were made to silence the company misconduct that he was attempting to raise in the long meeting on the 2 October 2024. Specifically, on 2 October 2024, the Applicant submitted that he raised a number of company conduct concerns set out at paragraph [6].
[86] The Applicant alleged that during the meeting on 2 October 2024, he was instructed by management to drink alcohol in order to cope with increased stress. In addition, the Applicant stated he had raised these concerns a number of times previously. The Applicant submitted that the resulting stress following the meeting was a contributing factor to him taking extended leave.
Consideration
[87] The nub of this case is the question of whether the direction of the Respondent was lawful and reasonable. It is apparent the Applicant held a genuine concern that if he signed the letter consenting to his treating medical practitioner discussing his personal and medical information with Mr Anderzipf, that the discussion may not be restricted to information solely related to his employment, and his current and future fitness to work. In my view, the letter does restrict the information that may be shared with the Respondent to information only in connection with his employment and his current and/or future fitness for work. On that basis it is consistent with what he had agreed with the Respondent in his employment contract about his preparedness to participate in any medical examination relevant to his position and/or his employment with the Respondent, to the standard required of his position and the Respondent.
[88] The Applicant accepted he did not propose any alternative method to the Respondent as to how he could provide the information the Respondent was seeking in relation to his fitness for work. The Privacy Act 1988 and the Australian Privacy Principles set strict guidelines concerning the handling of personal information including medical records, and they provide that personal information can only be disclosed with consent. I am satisfied based on the terms of the contract of employment that the Applicant confirmed during his evidence that he had read, signed and agreed to, that it provided the consent of the Applicant to disclose medical information relevant to his fitness for work to the Respondent if required. The extent of information requested was within the scope of what was contemplated by the employment contract and not beyond its scope.
[89] On that basis, the direction of the Respondent for the Applicant to facilitate the provision of the information by the method it proposed was a lawful and reasonable direction, as it was consistent with what had been agreed to between the parties about the provision of medical information. If it were not for the contract of employment, such a direction would not be lawful and reasonable in the absence of the Applicant’s consent.
[90] I also do not accept based on the evidence that the step of the Respondent seeking medical information from the Applicant’s treating medical practitioner concerning his fitness for work was some form of retaliation against the Applicant to silence him because he had raised concerns about the company’s conduct. I also do not accept that the dismissal was because of the Applicant’s illness or injury, or because the Applicant had a disability.
[91] I am satisfied based on the evidence, it was fair for the Respondent to dismiss the Applicant without notice because the Respondent believed on reasonable grounds that the Applicant’s conduct was sufficiently serious to justify immediate dismissal. I am satisfied that the Respondent held the belief that the Applicant’s failure to comply with its lawful and reasonable direction to participate in a medical capacity assessment constituted serious misconduct, and considering the terms of the employment contract, it has a reasonable basis to hold that belief.
[92] As set out above, regulation 1.07 of the Fair Work Regulations 2009 (Cth) defines serious misconduct as conduct including “refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.”
[93] I am satisfied the dismissal was consistent with the SBFDC. For completeness I would add that had I found the dismissal was not consistent with the SBFDC, or that the SBFDC did not apply, I would have found the dismissal was not unfair in accordance with the considerations in s.387 of the Act. Taking into account the totality of the evidence including the safety and operational issues, the Applicant was on notice about the consequences of his refusing to cooperate with the Respondent about its request and his contractual obligations, the Applicant was given the opportunity to respond to the request, and he did not engage with the request. The Applicant was not denied a support person and the Respondent is a small business. The Respondent was attempting to discharge its duty of care and its workplace health and safety obligations.
Conclusion
[94] For the reasons set out above, the Commission does not have jurisdiction to deal with the application as the dismissal was consistent with the SBFDC. An order will be issued separately and concurrently with this decision to that effect.”
Moers v The Trustee For Williamson Family Trust [2025] FWC 1344 delivered 14 May 2025 per Simpson C