A CASE to be decided by the Australian Industrial Relations Commission next month will determine whether Australia Post was lawful in its decision to force a mail sorter onto sick leave until he lost weight.
The issue drives to the heart of whether an employer can force employees to firstly undertake medical examinations and, secondly, whether or not an employer can sack or force an employee to take leave on the basis of the physical.
Jackson McDonald workplace relations team partner Greg Smith said a recent case suggested employers may have the right to require employees to undergo medical examinations.
“The right of an employer to require medical examinations does not go unfettered. The question whether it is reasonable for an employer to request an employee to attend a medical examination will always be a question of fact, as will the question of what are reasonable terms for under-taking the medical examination,” Mr Smith said.
Deacons senior associate workplace relations, Leanne Nickels, said employers were limited by their rights to require medical exams.
“Some drug and alcohol policies provide that, if there are reasonable grounds for believing an employee is affected by alcohol or drugs, then the employee can be requested to undergo a medical test, but not forced,” she said.
“A medical examination against a person’s will amounts to trespass.”
Mr Smith said that, although someone may have an injury or illness that restricted his or her ability to work, this did not mean an employer could automatically dismiss the employee.
“If the relevant injury is subject to workers’ compensation payments, an employer must continue to fulfil all their obligations under workers’ compensation legislation,” he said.
“In any event, ‘fairness’ requires that an employer undertakes reasonable steps to try and continue the employment of an ill or injured worker, including consideration of job redesign, redeployment, or retraining. Employers must only act on objective medical evidence, not assumptions, and consider any issues raised by the employee to manage their illness or injury, and ongoing employment.”
