Medical examinations are often used by employers to assess the fitness and capacity of employees, particularly when the employee is returning to work after a non-work-related injury. Issues may arise when employees refuse to attend medical examinations.
In Sidhu v Aldi Stores (A Limited Partnership)  FedCFamC2G 239, the Federal Circuit and Family Court of Australia (the Court) found that adverse action was not taken against an employee because he refused to comply with a direction to attend a medical assessment. However, in reaching its decision, the Court expressed doubt about whether the employer’s direction was reasonable and lawful.
The employee was employed in the position of full-time truck driver with Aldi Stores (Employer). In October 2019, the employee lodged a workers compensation claim for work-related stress or anxiety. From October 2019 to October 2020, he was largely certified as having no capacity for work. During this period, the employee had two failed attempts at returning to work before he was once more certified as having no capacity and did not return to work.
In August 2020 the Employer requested that the employee’s GP and treating psychologist provide medical reports containing their opinions of the employee’s condition and capacity to safely perform the inherent requirements of his job.
These reports stated that the employee had full capacity to work and that he no longer suffered from his previous condition. After receiving these reports, the Employer directed the employee to attend a psychological assessment with an Occupational Therapist (OT), but the employee refused to attend the assessment.
The Employer issued repeated directions to the employee to provide his signed medical authority. In a number of meetings with the employee, he was warned of the consequences of non-compliance. Each time, the employee refused to comply with the direction.
On 5 October 2020, the Employer terminated the employee’s employment.
The employee claimed that the Employer took adverse action against him by terminating his employment because:
(a) he exercised his workplace right to make a complaint about the Employer’s “unreasonable and unlawful demands” to attend the assessment by an OT; and
(b) of his physical and mental conditions.
The employee argued that the direction was unreasonable given that he had already provided the Employer with a full certificate of capacity and reports from both his psychologist and psychiatrist.
The Employer denied that the employee was dismissed for a prohibited reason. The Employer submitted that there was uncertainty arising out of the quality of the GP’s opinion considering his capacity to return to work which seemed “sudden and almost miraculous.”
Accordingly, the Employer submitted that it was the employee’s failure to comply with their lawful and reasonable direction which prompted the termination, not his complaints or for any discriminatory reason.
The Court noted that the primary issue in this matter was whether the employee was dismissed from his employment for a prohibited reason.
In relation to whether the employee was dismissed for making complaints about attendance at the assessment, the Court noted that the employee was given opportunities to raise his concerns during a number of meetings but there was no evidence that any disciplinary action was taken against the employee because of his complaints.
Further, it also found that it was reasonable and sensible for the Employer to seek further details and clarification regarding the capacity of the employee to return to work as a heavy truck driver.
The Court determined that it was the employee’s decision not to obey what the Employer “rightly or wrongly thought was a lawful direction” which was the sole reason for termination of his employment.
Given this finding about the reason for the employee’s dismissal, the Court also dismissed the employee’s claim of discrimination.
Accordingly, the employee’s claim was dismissed.
While the Court accepted that the Employer genuinely believed that referring the employee to an OT was an appropriate measure, it expressed doubt about whether the direction was reasonable and lawful and noted that the employee may have had a stronger unfair dismissal claim.
In this regard, the Court considered that the employee raised valid arguments about the authority of an OT to provide a psychological assessment and, that he was prepared to undergo an assessment of his capacity, provided it was conducted by a qualified psychologist. In sympathy with the employee, the Court also commented that the employee was entitled to suspect that the Employer was embarking on a process to “go behind the certificate of capacity and to find a means of not employing him.”
However, as this an adverse action claim, the Court noted that this was not a matter for it to determine.
Lessons for employers
Although the Court dismissed the application for adverse action on the basis of the evidence from the Employer as to the reason for dismissal, requiring employees to attend medical assessments must be done in a manner that is reasonable and lawful. Employers should not be cavalier about this process and if in doubt, should seek legal advice before issuing directions to employees.
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