The Fair Work Commission (FWC) recently dealt with an unfair dismissal case where an employer’s request for a medical certificate to demonstrate a senior manager’s fitness for work after an extended absence, would have been unlawful and unreasonable if his contract had not required him to participate in medical examinations.

The employee was dismissed in December 2024 for serious misconduct, after he refused to consent to his doctor reviewing his capacity for work and providing information about his fitness for work.

Background

In October 2024, the employee, a senior relationship manager, asked his general manager if he could work remotely from New Zealand with only one week’s notice, but the employer refused.

The employer requested that the employee instead use his annual leave during the trip, but the worker said he intended to visit to care for and support his mother, and would instead use personal/carers leave.

When the employee called in sick the day before his trip, the employer requested he provide a medical certificate, along with documentation “showing the necessity for you to provide care or support to your mother”, or his absences would be marked as unauthorised.

On October 17, the employee provided a medical certificate that certified him as unfit for work until November 1, and he subsequently provided further certificates covering him up to December 31.

Conflicting reasons for extended absence

The employer noted the worker had indicated he was unfit for work rather than providing a carer’s certificate, and because of the “conflicting” reasons for his extended absence and the lack of detail in his medical certificates, the employer directed him to attend a capacity review with his general practitioner using a form it provided, and to return the completed form.

The business advised the employee that it needed to gather details about the nature of his illness or injury, to determine if it affected his ability to work safely and to support his return to work. The form contained questions about the employee’s capacity, including:

  • If he had been suffering from an illness that would make it unsafe for him to attend work, based on the “stressors” of his role;
  • If the incapacity would be temporary, how long would it be before the employee had full capacity to work;
  • What measures the business could implement to enable the senior manager to safely carry out his duties.

The employee refused because he did not believe the request could be “legally binding” and advised he would get a “clearance once this is over”. The general manager advised the employee that his employment contract required him to participate in any medical examination “relevant to your position and/or your employment” to the standard the employer required.

On December 6, the business cautioned the employee that if he failed to sign a consent form for a capacity review by December 9, it may terminate his employment. When the employee did not respond, he was summarily dismissed on December 10.

Failure to comply with direction amounts to serious misconduct

The employer told the Fair Work Commission (FWC) that it had dismissed the employee for serious misconduct, because he refused to carry out a lawful and reasonable direction that was consistent with his employment contract.

The employee argued that he had been unfairly dismissed because the direction to consent to a capacity review with his GP about “personal and medical information” breached the Privacy Act. The worker believed that any discussion between his employer and GP “may not be restricted to information solely related to his employment, and his current and future fitness to work”.

The employer advised it had not asked to speak directly to the GP or to access the employee’s entire medical history, rather “the information sought was appropriately limited to matters relevant to the senior manager’s capacity to safely carry out his duties”. They also referred to another section of the employment contract, which states that if a worker is unfit to safely perform his job, the company might “require you to undertake a medical examination and obtain a fitness clearance before allowing you to undertake any further work”.

Request only lawful due to employment contract

The FWC found the request for a capacity review “does restrict the information that may be shared with the employer to information only in connection with his employment and his current and/or future fitness for work”, consistent with what the employee agreed when he signed his employment contract. Such a direction would not be lawful and reasonable without the employee’s consent, if it were not for the contract of employment.

The FWC also determined that the employer did not dismiss the employee because of an illness, injury, or disability. It ruled that it was fair for the business to have summarily dismissed the worker, based on “the belief that the senior manager’s failure to comply with its lawful and reasonable direction to participate in a medical capacity assessment constituted serious misconduct”.

The terms of the employment contract provided the employer with the basis to make the request, with the FWC noting the business was attempting to discharge its duty of care and its workplace health and safety obligations, and the employee refused to engage.

Are your employment contracts fit for purpose? With changing employment legislation and continuously evolving workplace practices, it is crucial to regularly review and update employment contracts to ensure your business is protected. Get in touch with our team, we can help.

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