Employer uses contractual term to enforce attendance at fitness for work (FFW) assessment

In (Mr Bertus Moers v The Trustee For Williamson Family Trust [2025] FWC 1344 (14 May 2025)) FWC confirmed that an employer properly dismissed a worker for deliberately failing to comply with a contractual term in their contract which required them to participate in medical examination to determine their FFW.

The worker had originally sought to work remotely from New Zealand which was refused by the employer. The worker then advised his employer that he intended to travel to New Zealand to visit and care for his sick mother using personal/carer’s leave. Prior to travelling to New Zealand the worker ‘called in sick’ and continue to do so using medical certificates from 17 October until 31 December 2024.

In early December the employer directed the worker to participate in a FFW assessment on the basis that it needed to determine the nature of his illness or injury and to determine if it affected his ability to work safely and to support his return to work. The worker refused claiming such a request was not legally binding and that he would return when his clearance was over on 31 December 2024.

Despite being warned by his employer that his failure to comply with his contractual term to participate in medical examinations to determine his FFW would result in the termination of his employment the worker refused to comply and he was summarily terminated on 10 December 2024 for failure to comply with a lawful and reasonable direction – and not because of some injury, illness or disability.

Our Take

This decision is good news for employers.

Both workers and employers have statutory WHS obligations to look after each other and to make sure that their actions do not adversely impact on each other and others in the workplace. This requires a level of ‘give and take’ for both parties.

Workers should be able to reasonably rely on their employer providing payment for accrued leave entitlements. Equally employers should be able to reasonably rely on workers providing evidence which substantiates the basis for the leave. Non-cooperation is not only unhelpful but it creates unnecessary levels of distrust – which in this case the employer lawfully followed through on.

Action Items:

• Update your contracts of employment - to ensure that it contains specific requirements for employees to reasonably participate in medical examinations to determine their FFW

• Update your induction materials - to ensure that employees are reminded of their obligation to reasonably participate in medical examinations to determine their FFW

• Use comprehension testing - to demonstrate that employees know they have obligations to reasonably participate in medical examinations to determine their FFW

Edge Legal

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