The case involved a Qantas pilot who had submitted medical certificates stating he suffered clinical depression and was unfit for work. The certificates each covered a period of several months, between July 2012 to March 2013.
The pilot’s fleet captain wrote to him, saying that because he was certified unfit for a considerable period, the airline required a written report from his doctor that clearly indicated his “diagnoses, prognosis, capacity to return to your pre-injury duties and the anticipated timeframe”.
The letter also required the pilot to attend a meeting to discuss the report.
The Australian and International Pilots Association (AIPA) challenged the airline’s entitlement to the information, but the fleet captain – after the pilot had been absent for more than 149 days – again requested both the letter and meeting.
When he didn’t receive it, Qantas determined to treat the matter as a disciplinary one. AIPA subsequently claimed the airline was taking adverse action against the pilot, in the form of “an intention to prejudice [the pilot] in the enjoyment of his right to obtain and receive sick leave” under his enterprise agreement.
Agreements aren’t exhaustive of employers’ rights
In the Commission, Justice Steven Rares considered the pilot’s enterprise agreement, which provided that Qantas could require a flight crew member who called in sick for duty on the same or following day they were expected to work, to produce a medical certificate or other evidence of unfitness for work.
That clause couldn’t be the sole determinant of the employer’s rights, however, because Qantas also had obligations under work health and safety legislation, he said.
“The necessity to imply a contractual right of Qantas to require its pilots to provide medical evidence of the kind it sought from [the pilot] 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 and Safety Act,” he said.
“An employee’s… 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 and Safety Act and its analogues.”
Justice Rares said an employer must be able to ascertain whether an employee’s condition has been caused by its workplace or another matter for which it is legally responsible, and if it has, “how to remedy that situation as soon as practicable”.
He added it would be “quite unrealistic to expect Qantas, as an employer, to be left with substantively no right or ability to require a sick employee to provide it with information, of the kind sought here, about the present and future position of a crew member who had been on extended sick leave”.
Justice Rares found Qantas had an implied contractual right to ask for more information about the pilot’s sick leave, and that it wasn’t adverse action to threaten to discipline him for failing to provide it.
Implications for employers
According to Holding Redlich partner Charles Power, Justice Rares “took a robust view on the employer’s right to seek medical information from an employee absent from work on sick leave”.
What this means for employers, he said, is: “You can include provisions in employment contracts, policies, awards and enterprise agreements allowing you to insist on employees taking sick leave provide you with certain kinds of medical evidence in certain kinds of circumstances. However your application of these provisions is subject to the FW Act requirement that you apply these provisions reasonably.”
Ordinarily, Power said, it would not be reasonable to insist that an employee supply a medical certificate for one-off days of absence, unless they are excessive or follow a certain pattern, such as before or after weekends, public holidays or RDOs.
“Where an employee is taking an extended period of sick leave for reasons which are not clear and/or the end date is unknown, you are entitled to require an employee to provide sufficient medical information to enable you to understand the employee’s condition, the causes of it and the likely prognosis.
Employers can, if necessary, require the employee to attend a medical examination to procure that information, he said.
Source: HRdaily.com.au
