The answer to this question is broad and diverse and will vary from case to case.
The starting point to any such question is the source of rights upon which an employer may request and an employee may refuse to attend a medical assessment. The next point is what form that assessment will take, and a final point is who performs the medical assessment.
It is important to note that this article will not touch upon obligations imposed for workers’ compensation claims; it deals with situations that do not involve workers’ compensation. But it is important to note that an additional set of obligations are imposed upon employers and employees under workers’ compensation legislation in each State and the Commonwealth.
The National Employment Standards (NES) as prescribed in the Fair Work Act 2009 (Cth) (FW Act) prescribe that an employee is entitled to, for each year of service, 10 days of paid personal/carers leave, provided, in the case of personal leave that the employee is not fit for work because of a personal illness, or personal injury affecting the employee (s.97(a) FW Act).
However, in order to be granted such personal leave, the notice and evidentiary requirements as prescribed by section 107 of the FW Act must be complied with. The requirements of section 107 of the FW Act, broadly stated, are that the employee provides evidence of the period of leave required and if required by the employer, evidence that would satisfy a reasonable person that the leave is taken for the aforesaid reasons of fitness for work as prescribed in section 97 of the FW Act.
The FW Act also prescribes that a modern award or enterprise agreement may contain terms of the kind of evidence that an employee must provide an employer. Therefore, if your employment is governed by a modern award or enterprise agreement, you may have further obligations to fulfil.
It is noted that modern awards, generally, simply refer back to the NES and FW Act provisions described above. But enterprise agreements can have varied and diverse obligations imposed upon employees, therefore it is imperative to check your enterprise agreement (if applicable) for any additional obligations.
Each State and the Commonwealth has an additional layer of legislative obligations in relation to fitness for work via workplace health and safety legislation. There is a great deal of similarity between each State and the Commonwealth’s legal obligations, but again, ensure you are aware of what legislation covers your employment.
Work health and safety legislation generally imposes an obligation upon an employer to ensure an employee’s health and safety at work, and upon an employee to ensure their own health and safety at work. For example, in Victoria, the Occupational Health and Safety Act 2004 (Vic) (OHS Act) imposes those obligations upon the employer at sections 21 to 23, and section 25 for employees.
Section 21 of the OHS Act, for example, prescribes that an employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.
In a practical sense this may include an employer requesting an employee to evidence their fitness for work before returning to the workplace.
The common law further imposes an implied contractual obligation in relation to this issue. In the Federal Court decision of Australian and International Pilots Association v Qantas Airways Ltd  FCA 32 at , the Court held that [emphasis added]:
In Blackadder 118 FCR at 411 -, Madgwick J held that, because of the strict obligations imposed on an employer by earlier legislation, that was replaced by the Work Health and Safety Act, it was essential for an employer to be able to require an employee, first, where necessary, to furnish particulars and or medical evidence affirming his or her continuing fitness to undertake duties and, secondly, where there was a genuine indication of a need for it, on reasonable terms, to attend a medical examination to confirm his or her fitness. He held that a term to that effect should be implied by law into contracts of employment because it was necessary to give business efficacy to the contract and so was an incident of the relationship as explained by McHugh and Gummow JJ in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 450.
Common law obligations upon the employee also include the duty to obey lawful and reasonable orders of the employer. As was stated in the High Court decision in R v Darling Island Stevedoring and Lighterage Company Ltd; ex parte Halliday and Sulivan (1948) 60 CLR 601:
If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable……what is reasonable is not…..determined….in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship, supply consideration by which the determination of what is reasonable must be controlled.
It is worth noting that Regulation 1.07 of the Fair Work Regulations 2009 (Cth) defines ‘serious misconduct’ as including the employee refusing to carry out a lawful instruction that is consistent with the employee’s contract of employment. It can therefore be seen that there are various types of legal obligations an employee may face when confronted with a request from their employer to attend a medical assessment. However, those obligations do not provide the employer with an unfettered right to direct your attendance at such an assessment.
For example, if the employee believes they have met the FW Act evidentiary obligations, and their employer continues to insist upon further evidence, the employee may have a right under a modern award, enterprise agreement or contract of employment to commence legal action in relation to such, whether that be a dispute application in the Fair Work Commission or injunctive relief in a Court. This may also include contravention of the FW Act workplace rights provisions and bullying provisions.
If an employer cites that they have a duty of care to ensure you are able to perform your work, a preliminary question for resolution is whether the job itself has been designed and is performed in a manner that is safe and consistent with the employer’s work health and safety obligations towards an employee. Again, dispute resolution avenues are available through applicable workplace health and safety legislation for such issues, as well as potentially a modern award or enterprise agreement that governs your employment.
Similarly, the common law requirement to obey a lawful and reasonable instruction is curtailed by the obligation for such instruction to be both lawful and reasonable, amongst various other factors to be taken into consideration.
As stated above, this article does not deal with workers’ compensation claims. It is noted that usually such claims compel an employee as part of that process to attend an examination of a medical practitioner determined by the employer or the employer’s insurer. Such is in addition to attending an examination by the employee’s chosen medical practitioner.
In the circumstances contemplated by this article, unless there is a legal source of right vested in an employer for you to attend a medical practitioner of your employer’s choosing, you should not do so.
For example, an enterprise agreement may contain an express term that in order to reasonably satisfy your employer of your illness or injury you must attend a medical practitioner of your employer’s choosing. In that circumstance you may be compelled to do so, but such would not prevent you from attending your own medical practitioner as well.
Commonly, however, the request to attend a medical practitioner chosen by the employer has no lawful basis and will inevitably prejudice an employee’s rights. Therefore, if you are asked to attend a medical examination by your employer, make sure you contact your Professionals Australia workplace delegate, your Professionals Australia health and safety representative or Professionals Australia first before agreeing to such a request.
Finally, employers will often ask to be provided with access to your medical information. Again, there is often little or no legal basis upon which an employer can compel you to provide access to such. Notably, many employers ask employees to sign documentation giving the employer access to such.
Be very vigilant of such a request and seek advice from Professionals Australia before doing so. Such medical information is your personal private information and often goes beyond that contemplated by the FW Act in terms of the provision of appropriate medical evidence relating to a request for personal leave.
The previously referred to decision of the Federal Court in Australian and International Pilots Association v Qantas Airways Ltd  FCA 32 provides a sound illustration of a circumstance where the Court found that it was appropriate that an employee provide an employer with suitable medical information.
That case involved a Qantas pilot who provided a medical certificate on 11 July 2012 indicating that the pilot would be unfit for work for a period of four months due to clinical depression. That pilot’s treating doctor had also written to CASA requesting that the pilot’s license be suspended until such time that his condition stabilised. A further medical certificate was provided on 10 October 2012 indicating an unfitness for work until 10 January 2013.
On 19 November 2012 Qantas wrote to the pilot, given the indication from the medical certificate that he would remain unfit for a considerable period of time, requesting a written report from the pilot’s treating medical practitioner indicating certain information including diagnosis, prognosis, capacity to return to pre-injury duties and anticipated timeframe.
On 30 November 2012, Qantas wrote to the pilot directing him to provide the requisite medical information indicating that such was a proper direction (that is, lawful and reasonable) and a failure to comply with such a direction may result in disciplinary action.
By 19 February 2013, the pilot had remained on sick leave under a medical certificate and no medical report as directed by Qantas had been supplied. At that time the pilot had been absent from work for over 200 days. This was also impacting upon the pilot’s eligibility for renewal of their pilots’ licence.
The Federal Court held that the request for further medical information was lawful by Qantas and held (at  – ):
I am of opinion that it would be quite unrealistic to expect Qantas to be left no ability, as an employer, information of the kind it sought her to require a sick employee to provide it with substantively no right to information about the present and future position of a crew member who had been on extended sick leave. The uninformative medical certificates, other than his first, that Dr Massie gave told Qantas nothing about how to plan for Mr Kiernan’s absence or return to work beyond his not being there for a period that might or might not be further extended. There is no suggestion in the evidence that Qantas took the action it took for any reason involving an intention to prejudice Mr Kiernan in the enjoyment of his rights to obtain and receive sick leave under cl 31 of the agreement.
Qantas’ requirements were reasonable requirements and were made solely for the purpose of assisting it in understanding how it would need to deal with Mr Kiernan in terms of matters to which Capt Miller’s evidence referred. Qantas required Mr Kiernan’s co-operation in order to make the operational side of the relationship work, both for Mr Kiernan and for Qantas. Mr Kiernan, no doubt at the behest of the Association, withheld that co-operation without lawful justification.
This publication is considered general information only and is not intended to be relied upon as legal advice or as a substitute for legal advice. If you require advice on your specific situation, please contact the Workplace Advice & Support team at Professionals Australia.
About the author – Lee Buntman
Lee Buntman is Senior Industrial Officer for the National and Victorian Divisions of Professionals Australia. Lee has been engaged in legal practice as a lawyer for over 15 years with the majority of that time spent in the union movement. His primary focus at Professionals Australia is upon collective industrial and employment law matters. Lee has undergraduate degrees in Business (management) and Law from Monash University and a Masters of Employment and Labour Law from Melbourne University.