Fair Work finds making staff visit a company-picked doctor can be reasonable

The Fair Work Commission has found it is “reasonable” for an employer to nominate which doctor an employee needs to visit when assessing a medical issue.

The issue was raised in a case recently before the Fair Work Commission by a call centre employee named Shirley Menegola, who reported to her employer that triggers in the workplace were causing her to have asthma problems.

While Menegola provided her employer, West Australian power company Synergy, with medical reports from her own physician, Synergy insisted it needed medical assessments from a physician of its own choosing. Fair Work found the request to be reasonable.

In late 2011, Synergy managers met with Menegola to discuss her health issues. Following the meeting, Menegola organised for the Asthma Foundation to deliver training sessions on the condition, and to provide training about the triggers for asthma in the workplace.

Despite these steps, Menegola continued to suffer health issues, such as hoarseness, which she linked to triggers such as the use of strong colognes and perfumes by her colleagues.

After raising concerns about these ongoing health problems with her workplace health and safety representative, Synergy held a series of meetings with their employee.

But on July 30, 2013, Menegola was stood down on full pay with a request to visit a doctor of Synergy’s choosing, despite providing information to the employer from her regular doctor.

Menegola provided further updates from her own doctor in September and was allowed to return to work. However, upon her return she reported the issue hadn’t been resolved and contacted the Australian Services Union (ASU).

During a series of meetings that followed, the ASU requested that Synergy should ban the use of colognes and perfumes in its workplace and that Menegola should be given the opportunity to work from home.

In response, Synergy stood down Menegola in order to investigate the union’s proposals and on November 6 told the ASU that the further medical assessments it requested were necessary.

“In order to consider either of the further significant adjustments suggested by Ms Menegola, our client needs to fully understand Ms Menegola’s medical condition, the limitations placed on her as a result, and the adjustments that would need to be made to the particular workplace in order to accommodate her condition and allow her to perform her role safely,” said the company in the letter.

“Only when our client has this information can it determine whether the adjustments are reasonable and practicable in all the circumstances.”

The Fair Work Commission sided with Synergy and found it was reasonable in the circumstances for Synergy to ask its employee to visit a doctor of its choosing.

“My decision is that, [Synergy’s] requirement for [Menegola] to attend a medical assessment, for the purposes of managing [Menegola’s] health and safety at work is reasonable,” the ruling states.

Employment lawyer Peter Vitale told SmartCompany a key issue in the case is an employer’s obligations in terms of occupational health and safety (OH&S) in the workplace.

“I think it recognises that employers have an overriding statutory duty on OH&S and that one measure it may need to take to satisfy those obligations is to get an independent assessment on an employee’s ability and fitness for work,” says Vitale.

“That may require directing an employee to visit a particular doctor.”

In a statement to SmartCompany, ASU WA branch secretary Wayne Wood says an appeal has been lodged over the decision, with a stay order issued pending finalisation of the appeal.

“[The] appeal applicant has sought further advice following the Decision by the Full Bench in Brisbane on 18th June 2014 [in regards to] Darrin Grant vs BHP Coal (C2014/3771). Parties are in discussions about the way forward in light of the Full Bench Decision,” says Wood.

SmartCompany contacted Synergy this morning for comment but no reply was available before publication.

* This story has been updated.

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