Employers Have a Right to Know!

A recent Federal Court ruling reinforces employers’ rights to seek medical information to satisfy work health & safety obligations.

In Australian & International Pilots’ Association v Qantas Airways Ltd [2014] FCA, Flight Officer Kiernan provided his employer, Qantas Ltd (“Qantas”) with a Medical Certificate dated 11 July 2012 which stated he was suffering from clinical depression and would be unfit for normal work for the next four months until 11 October 2012.  Mr Kiernan’s treating doctor also contacted the Civil Aviation Safety Authority (“CASA”) and requested that Mr Kiernan’s licence be suspended until his condition had stabilised.

Then, on 10 October 2012, Mr Kiernan’s treating doctor wrote a further Medical Certificate that stated Mr Kiernan “is suffering a medical condition and will be unfit for normal work” up to 10 January 2013.

Captain Miller, the Fleet Captain of Qantas’ Boeing 747 fleet, wrote to Mr Kiernan on 19 November 2012 and stated:

You are required to provide a written report from your treating doctor. This report should clearly indicate your diagnosis, prognosis, capacity to return to pre injury duties and the anticipated timeframe”.

Qantas justified the request for the information on the basis that, not only did it need to determine when (and if) Mr Kiernan would be able to safely resume his duties, but also the nature of the industry required Qantas to prepare its roster of pilots several months in advance.  Without this information, Qantas could be put in the situation where Mr Kiernan was cleared to resume his normal duties, but Qantas would be unable to roster him for any duties for a period of several months.

The Australian & International Pilots’ Association (“AIRPA”) disputed Qantas’ right to seek a medical report from Mr Kiernan’s treating doctor on the basis that Mr Kiernan had not been injured at work, was currently on personal leave and that Qantas could not require its employees to submit to medical examinations in order to establish their capacity to safely return to work until the employees were fit to return to work.  The AIRPA asserted that the worker had complied with any evidentiary requirements set out in the relevant Enterprise Bargaining Agreement and Section 107 of the Fair Work Act 2009 (Cth).

Mr Kiernan did not provide a report to Qantas and Captain Miller then directed Mr Kiernan to provide a medical report from his treating doctor and advised him that a failure to do so may result in disciplinary action.

On 1 February 2013, Captain Miller wrote to Mr Kiernan and asserted that his failure to comply with his direction to provide relevant medical information to Qantas’ operational management constituted serious misconduct and that Qantas was considering disciplinary action against him that may include the termination of his employment.

Of particular relevance to the Court were Sections 19 and 28 of the Work Health & Safety Act 2011 (NSW), which states:

19   Primary duty of care

(1)  A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:

(a)  workers engaged, or caused to be engaged by the person, and

(b)  workers whose activities in carrying out work are influenced or directed by the person,

while the workers are at work in the business or undertaking.

(2)  A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

28   Duties of workers

While at work, a worker must:

(a)  take reasonable care for his or her own health and safety, and

(b)  take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and

(c)  comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act, and

(d)  co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.

His Honour Justice Rares applied the reasoning of Justice Madgwick in Black Adder v Ramsey Butchering Services Pty Ltd (2002) 118 FCR 395, in which His Honour held that, because of the obligations imposed on the employer by the relevant work, health & safety legislation of the time, it was necessary for the employee to provide the employer with particulars and medical evidence regarding his, or her, fitness to undertake duties and also, where reasonable, to attend a medical examination to confirm his, or her, fitness.  His Honour in Black Adder had held that a term to this effect should be implied by law and contracts of employment.

His Honour Justice Rares stated in his Judgment, “The necessity to imply a contractual right of Qantas to require its pilots to provide medical evidence of the kind it sought from Mr Kiernan and for them to attend a meeting to discuss matters concerning their conditions arises from the obligations imposed on Qantas by both the agreement itself and the Work Health & Safety Act.”

He also stated that, “An employee’s statutory, certified agreement or analogous industrial award-based entitlement to take sick leave does not displace the contractual relationship in which, 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 employee will have on it and to address its obligations under the Work Health & Safety Act and its analogues.

Employers should not necessarily be satisfied with a medical certificate simply stating that the employee is unfit for work.  The lack of any information regarding an employee’s injury, or illness, may make it difficult for an employer to ensure that the employee safely returns to the workplace.  In appropriate cases, an employer is entitled to know:

1.   exactly why an employee is taking paid personal leave, and

2.   how long the employee expects to be away from work.

An appropriate case could be where an employer has an employee who is taking a significant amount of personal leave, or has an injury which affects their ability to perform their duties in a safe manner. In such cases the employer could request whatever information it reasonably requires to satisfy its obligations to the employee and other employees in the workplace pursuant to the relevant Work Health and Safety legislation in its jurisdiction.

For more information, please contact:
Patrick Walsh

Patrick Walsh
Director
p.  +61 8 8124 1941
e.  Email me

This communication provides general information which is current as at the time of production. The information contained in this communication does not constitute advice and should not be relied upon as such. Professional advice should be sought prior to any action being taken in reliance on any of the information. Should you wish to discuss any matter raised in this article, or what it means for you, your business or your clients' businesses, please feel free to contact us.

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