This is question that commonly arises when an employee has been off work on personal leave for reason of illness. They may have been absent from work for a few weeks, or a few months. The employer may want to know why they have been on leave for so long and whether they will be able to return to work.
It can be distressing for an employee to be told that they must provide additional information about their illness or allow their doctor to provide more information to the employer.
When answering this question, your lawyer will probably ask you about:
- the terms of any written employment contract;
- the industrial instrument (such as the Award or Enterprise Agreement) that applies to the employee’s employment;
- how long the employee has been absent on leave;
- what the medical certificates have said about the employee’s illness;
- the role and duties the employee was employed to fulfill; and
- any operational or business concern that may mean that the employer has an additional need for the information it is requesting.
A 2021 decision in the Federal Circuit Court of Australia serves as a reminder to employers that unless there is a lawful requirement or entitlement to a medical examination (such as under legislation, the terms of an Award or as a requirement in an employment contract) they must have a genuine need for the medical examination.
Whilst an employee has a duty to co-operate with their employer, an employee cannot be required to submit to whatever their employer asks. Whether it is lawful and reasonable to require an employee to submit to a medical examination will ultimately depend on a range of factors.
If you would like to discuss any concerns you may have about the above, feel free to call us on (03)57224681.
MORGAN COUZENS LEGAL
Wildman v IMCD Australia Ltd [2021] FCCA 1161 https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCCA/2021/1161.html
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