Where there are concerns about an employee’s fitness to work, employers may rely on terms in their employment contract which require the employee to comply with the reasonable and lawful direction to undergo a medical assessment.
For example, in the decision of Moers v The Trustee For Williamson Family Trust [2025] FWC 1344, the Fair Work Commission (FWC) upheld an employer’s summary dismissal of an employee who refused to comply with its request to provide medical information from his doctor confirming his fitness for work, as was permitted under his employment contract.
The employee was employed by The Trustee For Williamson Family Trust (the Employer) as a Senior Relationship Manager. The employee was scheduled to attend a disciplinary meeting with the Employer on 11 October 2024 to discuss concerns about his conduct and performance.
On the day of the meeting, the employee informed the Employer that he was unwell and would be unable to attend. The Employer rescheduled the meeting to 16 October 2024, being the date the employee returned to work from visiting his family in New Zealand on pre-approved leave.
On 15 November 2024, the employee emailed the Employer stating that he was extending his trip in New Zealand until 21 October 2024 to provide care to his family members. The Employer again rescheduled the disciplinary meeting until the date he returned from the extended leave.
From this point onward, the employee remained absent from work and provided the Employer with various medical certificates. These events can be summarised as follows:
The Employer formed the view that there was a “lack of detail” in the medical certificates provided by the employee and conflicting reasons for why the employee was absent from work.
Accordingly, the Employer sent a letter to the employee which included a lawful and reasonable direction to provide consent to write to his general practitioner (GP) to provide a capacity review. The letter enclosed a draft letter the Employer proposed to be sent to the employee’s GP with various questions about his fitness to work.
The employee refused to comply with this request.
The Employer warned the employee that its request was a reasonable and lawful direction under his employment contract and a failure to comply with such a direction amounted to serious misconduct warranting summary dismissal. The employee’s employment contract, which he signed at the commencement of his employment, stated that:
“You have participated in, or will agree to participate in any background check and/or medical examination relevant to your position and/or your employment with the Employer”.
The employee did not respond and as a result, the Employer summarily terminated his employment for refusing to comply with its reasonable and lawful direction.
The employee lodged an unfair dismissal application on the grounds that the direction to grant the Employer consent to access for medical information from his GP was in breach of his rights under the Privacy Act 1988 (Cth) (Privacy Act) and therefore, was unfair grounds for dismissal.
As the Employer was a small business employer, the FWC was required to determine if the dismissal was consistent with the Small Business Unfair Dismissal Code (the Code). This required consideration of whether the Employer’s request was a lawful and reasonable direction and whether the employee’s refusal of the request justified immediate dismissal.
The FWC acknowledged that the employee held genuine concerns about the implications of providing the Employer with personal information. However, the FWC found that the Employer was within its rights to request such information as it related only to the employee’s employment and capacity to work.
The FWC was also satisfied that the Employer’srequest was a reasonable and lawful direction in accordance with the terms ofthe employee’s employment contract.
The FWC stated that the Privacy Act sets strict guidelines on the handling of medical information, which can only be disclosed with the consent of an individual. The FWC found that the employee had provided such consent when he signed his employment contract, which included a term that required him to participate in any medical examination relevant to his employment. The FWC noted that, in the absence of such a term in the employment contract, it was unlikely the Employer’s request for information would be a lawful and reasonable direction.
Therefore, the FWC found that the employee failed to follow the Employer’s lawful and reasonable direction when he refused to allow the Employer to access his medical information from his GP.
The FWC agreed that this conduct amounted to serious misconduct, noting that the Fair Work Regulations 2009 (Cth) defines serious misconduct to include “refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment”.
Accordingly, the FWC was satisfied that the Employer had complied with the Code and dismissed the application.
This decision serves as a good reminder for employers to review and update their employment contracts to ensure that they include a term requiring employees to participate in any medical assessments requested by the employer if there are concerns about their fitness to work.
In this decision, the FWC relied on such a contractual term in finding that it was reasonable and lawful for the employer to request medical information from the employee’s doctor. Further, the FWC was satisfied that the employee’s refusal of this request amounted to serious misconduct warranting summary dismissal.
Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.
