The Fair Work Commission (FWC) recently heard a case regarding requesting medical information and directing employees to undertake a medical examination by an independent doctor. The case considers balancing competing interests when looking at the needs of employees with regards to their rights under legislation and privacy requirements, with the ability of the employer to access relevant information. As an employer, it can be one of the most challenging areas to navigate and should be given handled carefully to mitigate risk.

Case Studies

Holly Cederman v. Oleochem Project Management Limited [2023]

The employee was an industrial chemist in the oil and gas industry and had asked for transfer to an appropriate safe job while she was pregnant. The employee had requested a role that did not require exposure to chemicals during pregnancy because her doctor had said that minimising her exposure during pregnancy would be appropriate.

Employee constructively dismissed

There was much back and forth between the employee and the employer discussing:

  • What an appropriately safe job looked like
  • Whether it was necessary to transfer her to a different department
  • Whether she was on personal leave
  • Whether she needed to provide further medical information and medical assessment

In the end she resigned. The case ended up before the tribunal with the employee claiming she was constructively dismissed because of the employer’s conduct in trying to deal with her request for parental leave, safe job leave, and personal leave during her pregnancy. The FWC agreed to recognise the employee was constructively dismissed, making it possible for her to now bring a claim forward on that basis; providing some much-needed clarity on competing interests.

Clarity on privacy versus the need for information

The case provides clarity on balancing the employee’s right to privacy and how an employer needs to approach the obligations it has under legislation to allow an employee flexibility during times such as pregnancy, or when they are experiencing a disability, with the ability of an employer to access relevant information so that they can discharge their obligations to provide safe working environments and comply with the legislation.

Toni Mueller v. The Real McCoy Snackfood Co Pty Limited t/as Snack Brands Australia [2022]

Another good case that provides perspective on this is the decision from the FWC regarding a dismissal claim. The employee, who was 64 years old, had been diagnosed with multiple health conditions and the employer started to form the view that he was unable to do his job anymore.

Employer exhausted all options

The employer went through an effective process of identifying what the inherent requirements of the job were, and provided the employee with an assistant for a period. A comprehensive independent medical assessment was also carried out, as well as several attempts to accommodate the employee, including reasonable efforts to relocate him and adjust the role. In this instance, the employer had genuinely exhausted all options to support the employee to continue employment, with their decisions made based on comprehensive medical information. The finding was that the employee had not been unfairly dismissed and the key learnings from this for employers is the absolute value in having a very comprehensive approach to managing employees who are suffering from illness or injury, which is impacting their ability to perform their role.

Privacy and sensitivity is essential

It can be a difficult area to navigate for employers who need to seek out employee medical information, but it is vital to prioritise sensitivity. HR should approach these topics sensitively and respectfully in terms of the employee’s privacy in the following ways by restricting access to who gets the information, and ensuring the information is kept to the minimum that needs to be obtained for the employer’s purpose. For example, a full assessment of the employee’s full medical history is not always relevant. Any assessment or information needs to be focused on exactly what is needed for the employer’s purpose, and the inherent requirements of the role, and not distributed widely within the business.

Employers need to be proactive when it comes to requesting medical information and directing employees to undertake a medical examination by an independent doctor. If you need assistance, get in touch with our team – we can help! Find our articles helpful? Remember to follow us on Facebook, Instagram or LinkedIn to keep up to date with our practical tips and information for business owners and managers.