David Davies

Managing excessive absences from work using directions and contractual terms

David Davies

5 December 2016

Employment Policies

Some employers manage excessive absences from work reactively. They may receive a series of vague and short medical certificates that refer to the worker having, for example, a ‘medical condition’. Precious little detail is provided about the worker’s condition and likely date for a return to work. To get some clarity around the worker’s condition the employer requests more information, but either receives no clear reply from the worker or is told that it’s none of the employer’s business.

If this sounds like your situation, then you may be in a cycle of reactively managing absences from work. Many employers may not be aware that they have quite significant rights to require employees to attend medical practitioners for assessment. Yet the Federal Court of Australia has been willing to find that an employer had an implied contractual right to require an employee to provide medical evidence concerning his fitness for work, partly as a consequence of obligations imposed on the employer under work health and safety law. The Court said:

‘… at some point, the employer is entitled to make its own business arrangements to adjust for the impact that the leave caused by the sickness of the employment will have on it and to address its obligations under the Work Health and Safety Act and its analogues1.’

Similarly, the Full Bench of the Fair Work Commission has found that an employer’s direction to an employee, who had been absent from work due to a shoulder injury, to attend a medical examination was lawful and reasonable because it fell reasonably within the scope of service of the employee:

‘Given the nature of the Appellant’s medical history and the fact that the Appellant had had shoulder surgery and rehabilitation, the Respondent had reasonable cause to satisfy itself that the Appellant could safely perform his duties and would not expose anyone to an unnecessary level of risk2.’

Employers will generally have a right to request further medical information from an employee where it is sought for a legitimate business purpose or to comply with obligations under work health and safety law. Examples of this may include:

  • sporadic, lengthy or unexplained absences;
  • where there is little or any information about the reasons for the worker’s absence;
  • if there is a concern as to whether the nature of the injury will allow the work to be safely performed;
  • if there is inconsistency around the medical reports provided from the workers treating doctor; or
  • if other employees have raised concern about the worker’s health.

If an employee is given a lawful and reasonable direction and refuses to comply with it then, ultimately, the employer may be entitled to dismiss the employee and still have a defence to alleged unfair dismissal or discrimination claims. If a sensible procedure is adopted prior to termination and the worker is aware of the consequences of not complying with the direction, then that dismissal should be sustainable.

Your employment contracts can also usefully include an express term that the employer may:

  • direct an employee to attend a medical examination if the employer has reasonable concerns about the employee’s fitness for work; and
  • require the employee to provide evidence of the injury or illness during a period of personal leave, such as a medical certificate.3

It seems to us that employers could use directions to attend medical appointments more than they currently do. Obviously the employer will still need to act reasonably, select the right medical practitioner and make sure the practitioner is sensibly briefed on the operational requirements of the job.

However, no employer needs to put up with vague or non-cooperative responses to its reasonable concerns about excessive absences from work.

If you are interested in discussing this further and seeing how your workplace could become more proactive in managing absences, please do not hesitate to contact us.

David DaviesJacquie Seemann, Mark Branagan, Paul Ronfeldt, Andrew Cardell-Ree or Karl Luke.

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1 Australian and International Pilots Association  v Qantas Airways Ltd [2014] FCA 32
2 Darrin Grant  v BHP Coal Pty Ltd [2014] FWCFB 3027
3 Section 107 of the Fair Work Act 2009 contains some minimum notice and evidence requirements for employees taking personal/carers leave.