FWC rules on case where worker refused to let employer speak with his doctor
The Fair Work Commission (FWC) recently dealt with a case involving a worker's refusal to consent to employer communication with his doctor, which ultimately led to dismissal for serious misconduct.
The worker argued that his employer's request to speak directly with his GP violated his privacy rights and went beyond reasonable workplace requirements.
He maintained that while he was willing to provide medical certificates, the employer's demand for direct communication with his doctor represented an overreach.
The case raises important questions about the balance between workplace health and safety obligations and employee privacy rights, particularly when employment contracts contain clauses about medical examinations.
The conflict began after the worker, a senior relationship manager at a lighting company, had a meeting with the general manager and national sales and development manager where he raised concerns about workplace processes, including after-hours contact and bonus payment obligations.
Shortly after this meeting, the worker requested to work remotely from New Zealand. When this request was denied, he was invited to a disciplinary meeting regarding performance issues.
The worker called in sick on the day of the scheduled meeting and travelled to New Zealand, beginning a prolonged absence with multiple medical certificates extending his leave through December 2024.
The situation escalated when one medical certificate stated he was unfit to physically attend the office but could "attend to matters remotely." This prompted the employer to seek more specific information about his condition and capabilities.
The general manager sent the worker a letter directing him to sign a consent form allowing communication with his doctor. The letter included specific questions about which aspects of the role the worker could safely perform and what accommodations might be needed.
"To help us assess your ability to return, we require your medical practitioner to complete the attached form," the general manager wrote. The company offered to cover the cost of this assessment to evaluate his capacity to perform his role.
The worker firmly refused, responding: "I do not want anyone speaking with my GP, I don't believe this is normal practise either. Where is this in a statute or law?" Despite receiving multiple deadline extensions and warnings about possible termination, he maintained his position.
The employer pointed to specific clauses in the employment contract stating the worker would "agree to participate in any... medical examination relevant to your position" and "comply with all lawful and reasonable directions."
During the hearing, the worker confirmed he had read and agreed to these terms when first employed. However, he argued that you "cannot contract out of rights," suggesting that contractual terms can't override legal protections.
The employer cited obligations under Queensland's Work Health and Safety Act 2011 and the Disability Discrimination Act 1992, arguing they needed this information to assess his fitness for work and consider appropriate accommodations.
After examining the evidence, the FWC determined that the employer's direction was lawful and reasonable, given the employment contract terms and specific circumstances.
"I am satisfied the letter does restrict the information that may be shared with [the employer] to information only in connection with his employment and his current and/or future fitness for work. On that basis it is consistent with what he had agreed with [the employer] in his employment contract," the Commission explained.
The Commission addressed privacy concerns: "The Privacy Act 1988 and the Australian Privacy Principles set strict guidelines concerning the handling of personal information including medical records, and they provide that personal information can only be disclosed with consent. I am satisfied based on the terms of the contract of employment that [the worker] confirmed during his evidence that he had read, signed and agreed to, that it provided the consent of [the worker] to disclose medical information relevant to his fitness for work to [the employer] if required."
The Commission ruled the dismissal was consistent with the Small Business Fair Dismissal Code, noting that the Fair Work Regulations 2009 defines serious misconduct as including "refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment."
The FWC concluded: "I am satisfied based on the evidence, it was fair for [the employer] to dismiss [the worker] without notice because [the employer] believed on reasonable grounds that [the worker's] conduct was sufficiently serious to justify immediate dismissal."
The decision emphasises that while privacy laws protect medical information, employment contracts with consent provisions can establish legitimate grounds for employers to request specific health information directly from medical practitioners when assessing work fitness.
