Emil Ford Lawyers

Dismissal for failure to attend a medical examination

Work health and safety legislation imposes a primary duty on employers to ensure the health and safety of their employees. A consequence of this duty is that employers may direct their employees to attend a medical examination to determine whether they are fit to perform their duties, provided that the direction is reasonable. If the employee refuses a reasonable direction, the employer may have a valid reason to dismiss them.




"Is there a genuine basis for the examination ...?"

A recent decision of the Fair Work Commission has provided the following questions to assist in determining whether a direction to attend a medical examination is reasonable:

  1. Is there a genuine basis for the examination such as prolonged or unexplained absences or evidence of an illness which affects the ability to perform the inherent requirements of the job?
  2. Has the employee provided adequate medical information to explain his or her absences and to demonstrate his or her fitness to perform his or her duties?
  3. Is the workplace particularly dangerous or risky?
  4. Are there legitimate concerns that the employee’s illness/injury could impact on others in the workplace?
  5. Did the employee agree to the assessment by the practitioner selected by the employer?
  6. Was the employee advised of the details of the conduct which led to the concerns that he or she was not fit for duty?
  7. Was the medical practitioner advised of the issues of concern and were those matters focused on the inherent requirements of the job? What information was proposed to be given to the medical practitioner about the actual job requirements?
  8. Was the employee advised of the matters to be put before the medical practitioner for his or her assessment?
  9. Was the medical assessment truly aimed at determining, independently, whether the employee was fit for work?



"In this decision, the employee suffered from depression  ..."

In this decision, the employee suffered from depression and had also experienced difficulties with several other employees, which led to discussions with his manager about making a workplace bullying complaint. The Commission found that the direction was unreasonable as the employee had only missed one day of work, and was receiving ongoing medical attention. The Commission found evidence to suggest that the direction was part of unresolved disciplinary action against the employee, and thus an attempt to terminate the employment of a difficult employee. The dismissal was therefore found to be an unfair dismissal.

The entitlement to request a compulsory medical examination is part of an employer’s risk management in ensuring that it satisfies its duties under work health and safety legislation. Another aspect of risk management is an employer’s workplace policies. In this decision, it was relevant that the employer’s work health and safety policy made no mention of requiring a compulsory medical examination. This decision provides helpful guidance to employers regarding the circumstances in which a direction to attend a medical examination will be found to be reasonable, and a reminder of their work health and safety obligations.

Please contact or if you have any questions relating to unfair dismissal or an employer’s work health and safety obligations.

Suite 4 Level 5
580 George Street
Sydney NSW 2000
Phone: +61 2 9267 9800
Fax: +61 2 9283 2553