Can an employer direct an employee to see a company nominated doctor?

Yes, where the direction is lawful and reasonable.
There is a growing body of case law setting out the circumstances in which an employer may direct the employee to attend a medical examination by a doctor of the employer's choice.
Examples of these circumstances include where the employer:
  • is unsure of the health status of an employee due to return from a period of sick leave (particularly if the absence is prolonged);
  •  has genuine concerns about the employee's ability to perform their position without risk to their own health and safety or that of others; or
  •  wishes to assess if an ill or injured employee can perform the inherent requirements of their position. 
The recent case of Grant v BHP Coal Pty Ltd (No 2) [2017] FCAFC 42 (Grant) adds to this body of case law. Grant upheld a decision to dismiss an employee for, among other grounds, failure to follow his employer's lawful and reasonable direction to see his employer's nominated doctor.
Grant confirms one of the circumstances in which a direction to undergo a medical examination by a company-nominated doctor will be valid. The direction will be valid where the employer genuinely considers there to be an unacceptable risk to the safety of others if the employee returns to work, and the direction is aimed at discharging the employer's statutory health and safety obligations.

In this case, the Full Court found that:

the Coal Mining Safety and Health Act 1999 (QLD) (Act) recognised that the physical or mental state of a coal mine worker could create a risk to safety; and
 it is consistent with the language and objects of the Act that a coal mine worker could be required to undergo a medical examination that is reasonable and was necessary to ensure there would not be an unacceptable level of risk to safety.

Scarlet Reid

The answer is yes.

Scarlet Reid Partner

Scarlet is a highly experienced employment lawyer who advises her clients across the full range of issues that arise in the workplace. She is a recognised leader in the area of OHS, and is Best Lawyers' 2016 Sydney Occupational Health & Safety Law "Lawyer of the Year".

Over the past 15 years, Scarlet has specialised in work health and safety (WHS). As a former prosecutor at the WorkCover Authority of NSW, she provides her clients with a unique insight into compliance with WHS laws and defending WHS prosecutions. Scarlet is skilled in providing practical strategies for managing WHS risks.

Scarlet is an accomplished litigator and has defended various large corporations, government agencies and individuals charged with breaches of the WHS Law. She is experienced in responding to requests from Regulators and provides committed support to clients being investigated for breaches of safety laws, including carrying out detailed investigations into workplace incidents and representing her clients at coronial inquests.

Scarlet also provides front-end WHS advice, including the development and implementation of safety management systems and due diligence frameworks, designed to achieve compliance with the WHS Laws. She frequently conducts training for directors and managers which focuses on the practical measures required to meet both corporate and individual safety responsibilities.

Scarlet often speaks at conferences and seminars on developments and trends in WHS and employment law.

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