Employers have a reasonable right to inquire about an employee’s physical or mental illness if it might affect the employee’s ability to perform the inherent requirements of their role.
This is despite such a right being express in an employer’s workplace policy or an individual employment agreement. In Andreas Bletas v The Star Entertainment Qld Limited T/A The Star (formerly Jupiters)  FWC 2792, the Fair Work Commission (FWC) considered whether The Star Entertainment Qld Limited’s (the Employer’s) direction to Mr Bletas to attend an independent medical examination (IME) was reasonable in the circumstances. Ultimately, the FWC found that it was and dismissed Mr Bletas’ unfair dismissal application.
Mr Bletas commenced employment with the Employer on 1 April 2010 in the position of Table Games Croupier. The Employer terminated Mr Bletas’ employment with notice on 5 April 2018 on the basis of his continued failure to follow a reasonable and lawful direction of his employment, namely, to attend a medical assessment with an independent medical specialist at the Employer’s expense, as a result of the Employer’s ongoing serious concerns regarding Mr Bletas’ mental health.
Mr Bletas began having issues with his managers and other staff of the Employer when the Employer required its table games dealers to wear a different style of vest at work. Heated discussions ensued between Mr Bletas and various staff in respect of the requirement to wear the vest.
This ultimately led to the Employer arranging a meeting with Mr Bletas on 26 August 2018 for the purpose of discussing concerns regarding Mr Bletas’ failure to follow reasonable directions by Gaming Leaders. Mr Bletas did not attend this meeting.
Between 26 August 2018 and 31 August 2018, Mr Bletas’ conduct towards other employees was “bizarre, taunting, insulting and obstinate” and included threatening behaviour, uncomfortable and forceful handshakes with employees where it was unnecessary and unwelcome, inappropriate emails to staff regarding his refusal to attend a formal meeting and inability to work with manager, and a series of repeated and very short text messages to a manager, in addition to sending a Phil Collins YouTube link for the song ‘I don’t care anymore.'
The Employer placed Mr Bletas on special leave from 30 August 2018. It began to have serious concerns about Mr Bletas’ mental wellbeing in September 2018, as a result of his communications with the Employer’s staff. The Employer also came to realise that Mr Bletas was seeing a psychiatrist in Melbourne at around this time. It directed Mr Bletas on a number of occasions to attend an IME with a psychiatrist for the purposes of ascertaining whether he was fit to perform the inherent requirements of his role. Mr Bletas refused to attend the IME, which ultimately led to his dismissal on 5 April 2010.
Mr Bletas’ submitted that the doctor in which the Employer was directing him to see was a ‘career killer’ and would provide a biased report. He also submitted that he had no mental health issues and that the requirement for him to provide the Employer with access to his medical records was a ‘fishing expedition.’ The FWC rejected these submissions.
The FWC accepted that Mr Bletas had been displaying unusual and inappropriate conduct that reasonably gave rise to a concern that Mr Bletas might have a mental health issue, warranting an IME.
In respect of whether it was reasonable for the Employer to direct Mr Bletas to attend an IME, the FWC cited that “what is reasonable will depend upon all the circumstances, including the nature of the employment, the established uses affecting it, the common practices which exist and the general provisions of the instrument governing the relationship.” The FWC determined that the Employer acted reasonably in requiring Mr Bletas to attend an IME because it had a genuine concern about his mental wellbeing.
The Employer had a valid reason to terminate Mr Bletas’ employment – the repeated refusal of a lawful and reasonable direction – and Mr Bletas was warned on numerous occasions that non-compliance with such a direction could result in the termination of his employment. The Employer followed proper processes in respect of directing Mr Bletas to attend the IME, and eventually terminating his employment, which led the FWC to determine that his dismissal was not harsh, unjust or unreasonable.
From an employee relations perspective, managing employees with illnesses or injuries can be complicated for employers, as consideration must be given to a number of areas of law – work health and safety, workers compensation, discrimination, general protections and of course, unfair dismissal legislation.
At common law, there is an implied duty for employees to obey lawful and reasonable directions of the employer, including attending an IME. A direction to attend an IME may be considered lawful and reasonable where an employer determines that there are work, health and safety risks if the employee continues to work, or if the employee is regularly absent from the workplace without reason.
In any event, to avoid ambiguity we recommend that employers implement a fitness for work policy which expressly states when an employee is required to attend an IME. Further, it should also set out that employers will bear the cost of the examination and that employees will be required to sign a medical authority form to allow the employer to gain access to the report, to determine what actions (if any) to take moving forward.
1 June 2019