Unfair dismissal and lawful and reasonable instructions

An employer is entitled to insist upon an employer complying with lawful and reasonable instructions, including to visit a medical practitioner of the employer’s choosing if the reason for the requirement is legitimate and the circumstances are reasonable.

“Reasonable and lawful direction

[54] The Applicant did not dispute an employer’s right to direct an employee to attend an IMA. Contention arose in regard to the requirement for such a request to be reasonable. The Applicant referred to a passage from Blackadder v Ramsey Butchering Services Pty Ltd [2002] FCA 603 at [69] that stated:

“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.”

[55] The Applicant submitted that it was unreasonable for him to attend the proposed IMA as he did not have access to a vehicle and the proposed appointment was for a medical centre located in Booval, an area of Ipswich in Queensland, approximately 46 kilometres from Brisbane Airport, and 4 hours and 30 minutes from the Applicant’s home location (via public transport). The second proposed IMA was for Maudsland Medical Centre which is 2 hours and 45 minutes from the Applicant’s home location (via public transport). According to the Applicant, this was also unreasonable for him to attend.

[56] The Applicant asserted that at no stage did the Respondent make enquires as to whether or not he had access to a vehicle or means of attending this appointment.

[57] The Applicant further submitted that the timeframes provided to respond and attend the IMA’s were not reasonable given his circumstances. These circumstances included the Applicant’s limited access to a computer, smartphone and the internet, with his preferred means of contact being by post. The timeframes provided were considered onerous by the Applicant who claimed to often not receive documents until after a time that a response had been due from the Respondent. The Applicant also asserted that he was not provided with an opportunity to adequately respond to the reasons for his termination.

The Respondent argued that the Applicant’s failure to comply with a lawful and reasonable direction and his medical incapacity to perform the inherent requirements of the role constituted a valid reason for dismissal.

[64] The Respondent drew reference to Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at [373] where it was noted that a valid reason is one that is “[s]ound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason.” The Respondent argued that its decision to terminate the Applicant was ‘sound, defensible and well founded’.

Failure to comply with a lawful and reasonable direction

[65] It is a well-established 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, per Australian Telecommunications Commission v Hart (1982) 65 FLR 41.

[66] A failure to follow an employer’s lawful and reasonable direction can constitute a valid reason for dismissal under the Act, as found in Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374. …………..

Failure to follow a reasonable and lawful direction

[89] It is generally acknowledged that employees have an obligation to obey lawful and reasonable directions from the employer, and failing to do so may constitute grounds for termination. 5

[90] It is common ground between the parties that the Respondent had the power under the contract of employment to direct the Applicant to attend an IMA. 6 I accept that the directions issued on 15 August 2016, 12 October 2016 and 26 October 2016 were lawful directions. The directions were relevant and essential to the Respondent’s ability to determine whether or not the Applicant would be capable of fulfilling the inherent requirement of his role. The questions for consideration in relation to the direction are:

  1. a) was the direction to attend the IMA reasonable?
  2. b) if it was reasonable, was it a valid reason for dismissal?

[91] The Respondent pointed to the matter of Blackadder v Ramsey Butchering Services Pty Ltd 7 for guidance on the question of the reasonableness of a direction to attend an IMA. That case confirmed the proposition that ‘an employer should, where there is a genuine indication of a need for it…be able to require an employee, on reasonable terms, to attend a medical examination to confirm his or her fitness.8

[92] The Applicant in this matter advanced two submissions as to why he said the direction to attend the IMA was not reasonable, those being the proposed location of the IMA and the failure to give appropriate notice to attend the IMA. 9

[93] In Grant v BHP Coal Pty Ltd 10 requiring an IMA in circumstances where the employee had a lengthy absence from the workplace and provided only generalised medical certificates which provided limited information as to the medical condition was considered a factor in finding a direction to attend an IMA reasonable. There being no evidence that the employer had exhibited any predetermined view of the employee’s state of health or revealed any malevolent intent in directing the employee to attend the IMA and the IMA being scheduled with the appropriate medical practitioner were also considered factors in support of the reasonableness of the direction given in Grant.11

[94] In this matter, it is uncontroversial that the Applicant undertook a period of unpaid sick leave from March 2016 until the termination of his employment on 5 January 2017. During that period, the Applicant provided a number of medical certificates on 19 August 2016, 15 November 2016 and 12 December 2016. These medical certificates provided generic statements as to the Applicant’s incapacity to attend work with little substance as to his condition or the likely period of his absence. Given this, it was reasonable for the Respondent to make enquiries as to the nature of the illness in order to make an accurate assessment as to his ability to perform the inherent requirements of his role. This position is supported by the Respondent’s correspondence to the Applicant on 15 August 2016 stating:

“Given that it is unclear to us when you may be able to return to work, we require you to attend an independent medical assessment to better understand the nature of the injury and/or illness that has prevented you from performing your role, and whether or not your will be fit to attend work in the near future.”

[95] While the underlying basis for requesting the IMA was reasonable, the question arises whether the manner in which the direction was issued, in relation to location and notice, was reasonable.

[96] There was no evidence before the Commission to indicate that the employer had exhibited any predetermined view of the Applicant’s state of health or revealed any malevolent intent in directing the employee to attend the IMA that may form part of the factual matrix in assessing whether the location and notice of the IMA was reasonable.

[97] In response to the Respondent’s request that the Applicant undertake an IMA, the Applicant provided a further non-specific medical certificate indicating that the Applicant could not attend ‘appointments’. In what appeared to be an attempt at compromise, the Respondent then sought (in correspondence of 6 September 2016) permission to obtain information on the Applicant’s health from the Applicant’s medical practitioner who had issued the generic medical certificates. It should be noted that in that correspondence, the Respondent foreshadowed that:

“However, depending on the nature of the information provided…we will reschedule this appointment and provide you with a further direction to attend an independent medical assessment.”

[98] The issue of location as a factor in the Applicant’s attendance at the IMA first arose in his correspondence to the Respondent on 29 September 2016 in which the Applicant refused to consent to information being obtained from the Applicant’s medical practitioner, but otherwise stated that:

“I’m prepared to compromise and will attend for assessment with an independent specialist located on the Gold Coast, preferable the southern end of the Gold Coast.

With respect to date/time of appointments, I request for options or alternative date/time to be provided regarding appointments to accommodate all parties thank you.”

[99] It is uncontroversial to suggest that a direction may be given to an employee which does not accord with their preferences. The question remains whether the direction was reasonable. A direction should not be considered unreasonable solely by reason of being a non-preferred option of the employee.

[100] In this matter, while the exact preferences of the Applicant may not have been complied with, it is clear that the Respondent had sought to accommodate the Applicant’s location by scheduling an appointment on the Gold Coast and offering to reimburse travel costs incurred in attending. The Applicant argued that his impecuniosity and his associated requirement to travel on public transport, which would take more than two hours each way, and his inability to cover the upfront costs to then be reimbursed by the Respondent are factors in finding that the direction was unreasonable. Neither of these factors were communicated to the Respondent in the Applicant’s correspondence of 24 October 2016 (his response to the two proposed IMA’s by the Respondent on 12 October 2016).

[101] The evidence of Ms Robinson was that she could not recall if she had requested for the specialist psychiatrist at the southern end of the Gold Coast when organising the appointment for the Applicant. 12 Mr Wilkinson provided evidence that at the time of arranging the IMA, he understood that the Applicant did have a car.13

[102] In circumstances where the Applicant:

  • was provided two choices for the IMA location, one of which was within the area specified by the Applicant, that being ‘on the Gold Coast’ although not being within his preference of the southern end of the Gold Coast; and
  • could have got to the appointment within 45 minutes (by driving) from the Applicant’s home location; and
  • was offered to be reimbursed for transport costs to get to the appointment; 14

I find that requiring the Applicant to attend an IMA was as proposed, was not unreasonable, by virtue of the location of those appointments.

[103] I now turn to whether the direction was unreasonable by virtue of the notice provided to the Applicant to attend. This matter involved a series of communications between the period of 15 August 2016 and 3 November 2016 by both email and post. The repeated requests to attend an IMA were communicated to the Applicant by the Respondent and should be viewed as a collective attempt at gathering information regarding his medical status and his ability to return to work.

[104] The Respondent identified case law that supported its contention that the Applicant was required to be contactable and communicate with Virgin Australia during this absence 15 and that the Applicant had an implied duty to cooperate with his employer to meet the requirements of his employment16. Further it was submitted that the Applicant was under a contractual duty to cooperate with Virgin Australia in relation to issues concerning his employment and in relation to managing health issues.17

[105] In defence of the ‘only by post’ communication style that the Applicant adopted, the Applicant identified a Direction of Commissioner Simpson of the Fair Work Commission in a previous matter involving the parties which the Applicant submitted only permitted communication by the parties via post. That Direction stated:

“the Commissioner advises chambers will communicate with the parties by both post and email, and directs that the parties communicate with chambers and each other by post, and email where possible.” (emphasis added)

[106] I consider the Applicant’s decision to communicate predominately by post, in circumstances in which email is a reasonable and acceptable form of communication (and arguably preferable in circumstances in which information is required to be conveyed quickly), was not required but rather a choice undertaken by him. The fact that the method of communication used by the Applicant was a choice rather than a result of circumstance or a requirement imposed upon him is supported by the evidence. That evidence was that the Applicant sent nearly 300 emails from his work email address between 1 August 2016 and 5 January 2017. 18 The Respondent’s reliance on the Applicant’s use of email as a valid communication method is supported by the fact that the Applicant corresponded, at times, with the Respondent by email (for example on 21 August 2016) which might reasonably create an inference that the Applicant was using his work email during the period of scheduling the IMA. It is also supported by the fact that the Applicant did not communicate to the Respondent that he intended to communicate by post only. I am also of the view it was a choice given that Commissioner Simpson did not prohibit or restrict the parties from communicating by email in that previous matter, merely stating to communicate by email where possible. Further, I do not accept that Commissioner Simpson’s direction relating to means of communication applied beyond the confines of that matter.

[107] I agree with the proposition advanced by the Respondent, in accordance with the reasons in Laviano v Fair Work Ombudsman 19 that the Applicant unreasonably chose to adopt an impractical method of communications and now seeks to use his ignorance of his employer’s communications “not even as a shield but as a sword, in the present proceedings”’.20

[108] The Applicant’s representative advanced a submission that Laviano could be distinguished from the current matter as it involved a more serious failure to communicate and repeated refusals to follow directions. 21 While the circumstances in Laviano in relation to the inadequate communication by the employee may have been more extreme than the present matter, this does not mean that behaviour on an employee’s part that is less unreasonable, but still unreasonable, will render an employer’s direction unreasonable. Further, while the number of employer directions not complied with in Laviano may have contributed to a finding that the employer had a valid reasons for the dismissal, in relation to s.387(a) of the Act there is no requirement for more than a singular valid reason and that decision should not been seen as imposing some additional requirement/s for the failure to follow a lawful and reasonable direction to attend an IMA to be considered a valid reason for dismissal.

[109] The Applicant argued that there was no attempt by the Respondent to identify if the Applicant was using his emails in the period between 24 October 2016 and 3 November 2016 when the relevant direction was made, that there was no requirement for the Applicant to check his emails when not at work and that as the Applicant did not receive the direction on 26 October 2016 until the same day as the IMA was scheduled, there was insufficient notice for the direction to be reasonable.

[110] As I have stated, the Applicant created a reasonable inference that he was contactable by email by corresponding at times via email and by failing to inform the Respondent of his intention to correspond by post only. While the Applicant may not have considered to be obligated to check his emails regularly while not at work, he did have obligations under his contract of employment to cooperate with Virgin Australia in relation to issues concerning his employment and managing health related concerns. Further, I am inclined to agree with the Respondent’s submission that the Applicant should have been on notice that the Respondent may attempt to contact him in relation to matters of fundamental importance to his ongoing employment and that he therefore should have been actively monitoring potential communication methods, or at least provided notice to the Respondent that he was only going to be communicating by post (even though through his conduct it was clear that he was already communicating with the Respondent by email).

[111] Given that I consider the Applicant’s actions in choosing to correspond in an overly restrictive manner which appears to be inconsistent with his contractual duties, rather than considering whether the direction was unreasonable because of the notice provided in terms of when the Applicant in fact was notified, I intend to examine the issue of unreasonableness in relation to the notice provided from the perspective of the date of the provision of the direction.

[112] The Applicant was initially sent correspondence on 12 October 2016, which identified the appointment on 3 November 2016 as one of two options, and this document was received by the Applicant on 21 October 2016, 13 days prior to the relevant appointment. The Respondent sent the direction only by email on 26 October 2016 to the Applicant to attend the specific appointment on 3 November 2016 on the Gold Coast which is 8 days prior to the appointment. Australia Post records confirm that the 21 October 2016 letter was delivered to the Applicant on 2 November 2019, having being sent only by post 1 November 2016 by the Respondent, however, the Applicant indicated that he did in fact receive this letter on 3 November 2016. While the Applicant may or may not have received the correspondence prior to the appointment, I have determined that the Applicant acted unreasonably in choosing to correspond only by post during this time and by not checking his emails during this relevant period. If the Applicant did check his emails, it would have confirmed the direction was to attend the IMA on 3 November 2016. I have already discussed that it was the Applicant’s choice to communicate only by post during this time and he was under no obligation or requirement to do this. This conduct was entirely self-imposed.

[113] As such, I do not consider that the direction provided by the Respondent to attend the IMA on 3 November 2016 was unreasonable by virtue of the provision of insufficient notice. It was the Applicant’s responsibility to check his emails. In any event, I am unable to say on the evidence that the Applicant did not receive the post version of the 26 October 2016 letter prior to the appointment on 3 November 2016 either on 2 November 2016, or by the Applicant’s own admission, sometime in the morning of 3 November 2016. If the Applicant had received that letter (in the morning), it would have outlined the direction to attend the appointment for 2:30pm that day and that the Respondent had offered to pay for the cost of travel to get to that appointment. The Applicant could still have reasonably attended the appointment.

[114] In relation to the deadlines provided when responses were requested by the Respondent during the process of scheduling the IMA, the Respondent was required only to provide a reasonable and lawful direction and not required to follow any specific procedure to allow the Applicant a response to the proposed direction before it is made.

[115] Given that I have concluded that the direction was reasonable, it is necessary to consider whether the failure to attend an IMA where reasonably directed to do so is a valid reason for dismissal. There is case law to support the fact that the failure to follow a lawful and reasonable direction is a valid reason for dismissal. 22 Having regard to the test as to whether a reason is a valid reason for dismissal articulated in Salvachandran v Peteron Plastics Pty Ltd23 I consider that the failure to attend an IMA in circumstances in which the Applicant had significant time off work and provided little detail about the nature or likely continuation of his condition is a valid reason for dismissal.”

Ingall v Virgin Australia Airlines Pty Ltd (2019) FWC 4947 delivered 3 September 2019 per Lake DP