Where there are concerns about an employee’s capacity to work, it is prudent for employers to obtain medical advice confirming whether the employee can safely perform the inherent requirements of their role. This may include requiring the employee to undergo an independent medical examination (IME).
In Johnson v Chief Executive, Department for Education [2025] SAET 37, the South Australian Employment Tribunal (SAET) found that an employer lawfully terminated an employee who refused to comply with its directions to provide further medical evidence and to attend an IME to confirm their fitness for work.
The employee was employed as a part-time Swimming Instructor for the Department of Education (the Employer).
From as early as November 2021, the Employer had concerns about the employee’s ability to perform her role. At that time, its concerns included the employee crying at work, attending work on days she was not rostered and submitting inaccurate leave records.
In or around January 2024, the employee was observed crying and unable to perform her duties during a training session. The Employer wrote to the employee about this behaviour and requested that she attend a meeting to discuss its concerns.
On the day of the meeting, the employee did not attend and asked if she could take a period of sick leave. The Employer granted this request, despite the employee failing to produce a medical certificate when asked.
During the employee’s period of sick leave, she attended work for another training session. The Employer asked the employee to leave the workplace and later directed her to remain absent from work until she could provide medical evidence confirming her fitness for duty and ability to engage in performance conversations.
From February 2024, the Employer had a series of meetings with the employee to discuss her capacity for work and performance. The employee initially agreed to take a period of extended leave from work, but then later insisted that she wanted to return to work in full capacity. In the final meeting, the employee was upset, crying and left the room abruptly.
The Employer submitted that it was at this stage that it became seriously concerned that the employee’s mental health was impacting her ability to perform her role and engage in performance discussions.
As a result, in May 2024, the Employer sent an email to the employee requesting her permission to write to her doctor regarding her fitness to work. The employee did not respond to this email.
The Employer sent a second email to the employee directing her to attend an IME to determine her fitness for work. The employee was asked to nominate one of the two psychiatrists nominated by the Employer to conduct the IME and provide a report. Once again, the employee did not respond to this email.
The employee’s employment was eventually terminated in August 2024 on the basis that she had refused to comply with the Employer’s reasonable direction to attend an IME and, as a result, the Employer was unable to confirm whether she was fit for duty.
The employee subsequently applied to the SAET claiming that her dismissal was harsh, unjust and unreasonable.
The SAET considered the facts of this case to be similar to the facts in the recent decision of Davies v CALHN [2025] SAET 20 (Davies), in which Deputy President stated at [50]:
"I have concluded that the dismissal decision was not harsh or unreasonable. It was the only option available to the respondent when faced with objectively based serious concerns over the applicant’s mental health and fitness to return to work, and his complete and continuing lack of co-operation in investigating those concerns. The respondent was obliged to investigate whether he was safe and capable of returning to the workplace."
In the current decision, the SAET was satisfied that the Employer held genuine concern that the employee suffered from some cognitive or psychiatric difficulty and that this was a reasonable basis for requesting medical evidence confirming her fitness for work – including requiring her consent to write to her treating doctor and directing her to attend an IME.
In light of the findings in Davies, the SAET found that the Employer had little choice but to terminate the employee’s employment after she refused to comply with these requests.
As the employee failed to produce any evidence which supported her claim that the termination was harsh, unjust or unreasonable – the SAET dismissed the application on the basis that it had no real prospects of success.
It is reasonable for employers to request medical evidence from an employee where there is genuine concern about their fitness for work and their ability to safely perform the requirements of their role.
As demonstrated in this decision, this may be done by requesting the employee’s consent to write to their treating doctor about their fitness for work or requiring the employee to undergo an IME.
In either case, the employer must be satisfied based on such medical evidence that the employee is fit and able to safely perform the inherent requirements of their role before a decision is made as to whether they can recommence their usual duties.
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