10 Oct 2011
Words Tim Admin

Mature Market Views

In the case of employee illness, and consequent absence from work, the discussion often surrounds the need for employees to furnish a medical certificate. But, what about a clearance to return to work? In many cases where employees are absent from work because of illness or incapacity, whether on workers compensation or sick leave, a question often asked is - “Does the employer have the right to ask for a medical clearance before allowing an employee to resume duty?” Return refused In a recent case before the Australian Industrial Relations Commission (AIRC), an employer refused to allow a machine operator to return to work without a medical clearance. The employee had fallen ill at work and was taken to hospital by ambulance.After consultation with the employer’s doctor, the employee was told he needed to be declared fit before resuming duty. The employee ignored that request and a further request that he see a doctor of the employer’s choice and be declared fit for work.The employee instead filed an application with the AIRC claiming unfair dismissal. Commission ruling The Commission held that the employee was not terminated, referring to the employer’s continual attempts to impress upon the employee the need to co-operate with the doctors, since he would not be allowed to return to work until he had medical clearance.The employee had apparently claimed that a “constructive dismissal” had occurred, meaning a dismissal at the initiative of the employer. For the foregoing reasons the Commission obviously did not agree. Make it a condition An issue that is often debated is whether an employer has the right to have an employee examined by a medical practitioner of the employer’s choice, particularly where the employer needs to be assured that the employee is actually fit to resume his or her original duties, or some other duties.The best way to ensure this right exists is to make such a provision a condition of employment, to which the employee agrees