Case: Blackadder v Ramsay Butchering Services Proprietary Limited [2002] FCA 603 ; (2002) 118 FCR 395
Outcome: cited
In Blackadder v Ramsay Butchering Services Pty Ltd [2002] FCA 603 ; (2002) 118 FCR 395 , Madgwick J considered the issue of a requirement of an employer in New South Wales for a reinstated employee to undergo a medical examination before reporting for work on reinstatement. Madgwick J said, at 411: "An employer has, as indicated above, strict obligations under the NSW legislation to ensure the safety and well-being of its employees. The importance of occupational health and safety is also reflected in the Act. Whilst an AWA, in general, prevails over conditions of employment specified in State laws to the extent of any inconsistency, provisions which relate to certain matters, such as occupational health and safety, operate subject to any relevant State law (see s 170VR(2) of the Act). It is in my opinion, essential for compliance with the above duties, that an employer be able, where necessary, to require an employee to furnish particulars and/or medical evidence affirming the employee's continuing fitness to undertake duties. Likewise, an employer should, where there is a genuine indication of a need for it, also be able to require an employee, on reasonable terms, to attend a medical examination to confirm his or her fitness. This is likely to be particularly pertinent in dangerous work environments. Abattoirs entail obvious risks, among other things, of injuries from the repetitive use of knives at speed, and to the spinal column from the necessity to twist, bend and/or lift. The question whether it is reasonable for an employer to request an employee to attend a medical examination will always be a question of fact as will the question of what are reasonable terms for the undertaking of the medical examination. The matters will generally require a sensitive approach including, as far as possible, respect for privacy. Nevertheless, I assume that there now should be implied by law into contracts of employment terms such as those set out in the first two sentences of the preceding paragraph, on the basis that such terms pass the test of 'necessity' accepted by McHugh and Gummow JJ in Byrne v Australian Airlines Ltd [1995] HCA 24 ; (1995) 185 CLR 410 at 450." Those observations of Madgwick J were not disturbed on appeal to the Full Court of the Federal Court and finally on appeal to the High Court, which upheld Madgwick J's decision in whole: [2005] HCA 22 ; (2005) 221 CLR 539. 51 As I have already noted, an employer has an obligation under the Occupational Health and Safety Act 2004 (Vic) to provide a safe place of work. In carrying out and discharging that obligation, an employer may, from time to time, need to assess and determine whether an employee suffers from a disability that might affect his work. The employer might need to have regard to the nature and consequences of the employee's disability in relation to the workplace in which the employee works. 52 As I noted earlier, s 15(4)(a) of the Disability and Discrimination Act does not render a dismissal unlawful where the disability prevents the employee from carrying out inherent requirements of his or her work. It is because of those matters that it is appropriate that an employer be able to obtain medical information about an employee that might be relevant to the performance of his or her work. It follows, in my view, that there are circumstances in which a requirement to provide medical information to one's employer, provided it is made on reasonable terms and is shown to be reasonably necessary, does not constitute a detriment in employment but is, as Madgwick J observed, a necessary part or an incident of the employment. 53 I consider such circumstances to be present here, where there is a history of absences due to a medical condition, where there are inconsistencies in the information available to the employer in relation to the state of the employee's health, and where there are a number of absences for which no details or reasons have been given. In this respect, I refer again to the absences that occurred on and between 5 December 2007 and 6 May 2008. 54 In my opinion, it was reasonable, and probably necessary, for the respondent in this case to find out more about the applicant's condition, which included the obtaining of a report from a psychiatrist, especially having regard to the unexplained absences. 55 I am satisfied that there is no serious issue to be tried as to whether the respondent has subjected the applicant to a detriment within the meaning of that expression in s 15(2) of the Disability Discrimination Act . 56 Even if there was a serious issue that the respondent has subjected the applicant to a detriment, it is necessary also for the applicant to establish that there is a serious issue to be tried as to whether the requirement of the employer entails discrimination on the ground of the disability. In this respect, I refer to s 5(1) of the Disability Discrimination Act , which requires there to be established that the applicant has been treated less favourably than the employer would treat a person without the disability. This raises what I called earlier the causation issue and the comparator issue.