Reasonable and lawful directions.
With the onset of Psychosocial Risks and Hazards legislation, an increase in mental health claims, exposure, disclosure, discussion and risk management the issue of medical evidence becomes an area of legal contention.
There are key questions to traverse when it comes to medical assessments, medical capacity and mental health.
A prime question is whether requiring an employee to undertake an Independent Medical Examination (IME) is a reasonable and lawful direction.
If it is reasonable then it can form a defence to an unfair dismissal claim (or other claims for that matter).
Is requiring an IME a reasonable and lawful direction?
In a word.
YES.
When there are legitimate concerns about an employee’s mental health or capacity to perform their role, directing them to provide medical evidence or attend an Independent Medical Examination can be both reasonable and legally defensible particularly if those concerns remain unaddressed.
What do the Courts and Commissions say?
In the recent case of Johnson v Chief Executive, Department for Education [2025] SAET 37, the South Australian Employment Tribunal (SAET) confirmed that an employer acted lawfully in terminating an employee who refused to comply with requests to confirm her fitness for work.
The employee, a part-time Swimming Instructor, had been the subject of ongoing concerns about her conduct and emotional well-being. This started as far back as 2021. These concerns included:
- emotional distress at work,
- constant crying at work;
- unrostered attendance;
- failing to attend meetings; and
- issues with leave reporting.
By early 2024, the situation escalated when the employee was seen crying during a training session and appeared unable to carry out her duties. When the employer attempted to address the issue, the employee requested sick leave but failed to supply a medical certificate when asked.
Despite being on leave, the employee later attended another training session, prompting the employer to direct her to stay away from the workplace until she could provide medical clearance.
The Employer’s Response
Over the following months, multiple attempts were made to engage the employee in discussions about her return to work and capacity to perform her role. The employee gave mixed signals initially agreeing to extended leave, then insisting on returning to full duties. During the final meeting, she was visibly upset and left abruptly before it concluded.
Concerned about her mental well-being and ability to engage in meaningful performance discussions, the employer took the next step, requesting her consent to contact her treating doctor.
When that went unanswered, the Employer issued a formal direction for the employee to attend an Independent Medical Examination with one of two nominated psychiatrists.
The employee again failed to respond.
Lawful Termination and Unfair Dismissal
With no medical evidence to confirm her fitness for duty and ongoing non-engagement, the employer terminated her employment in August 2024 for failing to comply with a reasonable and lawful direction.
The employee challenged the dismissal, alleging it was harsh, unjust or unreasonable.
However, the SAET disagreed.
The Tribunal referred to its earlier decision in Davies v CALHN [2025] SAET 20, where it upheld dismissal on similar grounds, noting that an employer’s obligation to ensure a safe workplace sometimes necessitates investigation into an employee’s mental health, especially when the employee refuses to cooperate.
In Johnson, the Tribunal found the employer had acted reasonably and proportionately in seeking clarification about the employee’s fitness to work. With no evidence to support her claim of an unfair dismissal, her application was dismissed.
From a Federal perspective, Johnson also just supports key Fair Work Commission cases, which clarifies that requiring an employee to undertake an Independent Medical Examination is a reasonable and lawful direction.
Key cases include:
Kelly v Moreton Bay Boys’ College [2022] FWC 194 and Lee v Origin Energy [2023] FWC 2906 both confirmed that directing an employee to attend an Independent Medical Examination is both lawful and reasonable. In particular, when:
- there has been unexplained absence;
- limited medical information provided;
- there is a requirement to assess an employee’s fitness for work.
HR Takeaways
For HR professionals and HR teams, this decision highlights the importance of:
- Acting on genuine concerns: If there are observable indicators of impaired capacity especially involving mental health, employers must take action to assess risk.
- Following a fair and reasonable process: Providing clear communication, opportunities to respond, and multiple requests for medical evidence strengthens the Employer’s position.
- Using Independent Medical Examinations appropriately: When internal medical evidence isn’t forthcoming, requiring an independent assessment is a valid step particularly when safety or performance is at stake.
- Documenting interactions: Keeping thorough records of communications, requests, and the employee’s responses (or lack thereof) is crucial.
Our Employment Lawyers at South Geldard Lawyers have essential expertise in advising on Independent Medical Examinations, reasonable and lawful directions and unfair dismissal . Feel free to reach out on 07 4936 9100 or via email to Jonathan Mamaril, Director at jmamaril@southgeldard.com.au. All Employers receive an obligation-free consultation.
