As our readers are aware, we have previously blogged about including psychological testing as part of a pre-employment medical. Building on that theme we now comment on a recent FWC decision involving an employer’s ability to have existing employees undergo a psychological medical examination.
In January 2014, Mr Z raised concerns about the behaviour of his co-workers (which were investigated and dealt with by Woolworths). During the grievance process, it was recommended to Mr Z that he see a psychologist based on his body language and the information Mr Z provided as part of his complaints which caused management some concern.
Mr Z attended the psychologist recommended by Woolworths and a report was provided. Woolworths advised Mr Z that in light of the report, Mr Z was considered medically unfit for work and that in order to facilitate a safe return to work he would be required to attend a further appointment with a GP or psychologist. Mr Z refused and he was subsequently advised by Woolworths that a failure to do so may have an impact on his employment. Mr Z was asked again on multiple occasions to attend a further appointment or get medical treatment but he refused on the basis that he “did not need to go” and he understood what would happen to his employment if he did not.
Mr Z was eventually dismissed from his employment because he did not comply with the reasonable request of Woolworths to seek a second opinion or undergo medical treatment.
Mr Z lodged an unfair dismissal application and the FWC determined that the dismissal of Mr Z was not harsh, unjust or unreasonable but rather the failure of Mr Z to follow a reasonable and lawful direction of his employer by refusing to seek a second opinion and/or undergo medical treatment as recommended by the psychologist. By failing to comply with the direction, Woolworths was unable to determine if Mr Z could perform the inherent requirements of his position and if Mr Z had followed the direction Woolworths would have been able to comply with its obligations under work health and safety laws.
So, as you can see, psychological and physical conditions can be treated the same for the purpose of an employer assessing whether or not an employee is fit to perform the inherent requirements of his/her role.
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