Employee non-compliant with medical advise

[RebeccaS]

Can anyone help with a difficult situation?

We have an employee on a remote minesite who has been issued with medication by the medic onsite for an infection and told to stay in camp and not return to work until recovered. The employee is refusing to take the medication prescribed and has returned to work with the infection still.

The medic is concerned for 2 reasons:
1. The infection is causing the employee not to sleep, and therefore she is fatigued while at work, and
2. That the infection will spread and she will be required to be driven off site for urgent medical treatment at the nearest hospital.

Are we able to legally stand her down and remove her from site immediately due to her non-compliance with medical advice?

Thanks!

[Cottoneyes]

The employer as welfare officer The VECCI Blog

The above case springs to mind immediately, you might want to get some specialised legal advice on your case as the above link will show you the dangers of this situation.

Basically the OH&S onus after the above case really swung to the employer to impose the safety issues on the employee, with sacking the only way to avoid the OH&S risk. But to do so incorrectly would open the door to unfair dismissal action. Finding alternative duties might be another option but not sure what other duties might be available on the site.

It might come down to weighing up the cost of the unfair dismissal if alternative duties can't be found, against the possible cost of multiple injuries the worker might cause by continuing to work.

[Moz]

Originally Posted by Cottoneyes

The employer as welfare officer The VECCI Blog

The above case springs to mind immediately, you might want to get some specialised legal advice on your case as the above link will show you the dangers of this situation.

Basically the OH&S onus after the above case really swung to the employer to impose the safety issues on the employee, with sacking the only way to avoid the OH&S risk.

When you read this bit from one of the comments, it appears the VECCI blog post is rather alarmist;

A quote from the Australian from the ruling:

“If the applicant had substantially lesser service; had not been a middle-aged man with very poor employment prospects for whom the dismissal has such serious personal and economic consequences; or if it had been brought home to him at any time on 2 September, 2009, that a further breach would have serious consequences, I would not have concluded that the dismissal was harsh,” vice-president Michael Lawler found.

He said Mr Quinlivan should have been warned rather than sacked. He ordered his reinstatement and that he be paid $16,000.”

It seems the employer made a fundamental mistake - they did not warn the employee that if he did not comply with the OHS policy then his employment would be terminated.

Rebecca, my guess is that you cannot force her to take the medication. However, if you believe that she is a risk to herself or other employees because of this infection and subsequent fatigue then you must prevent her from entering the mine site.

I'm no expert, but this is how I would approach it in the absence of expert advice (which you may not be able to wait for).

Give the employee the medic's instruction in writing and make it clear that the issue is fatigue, which means she cannot be assigned any other tasks. She needs to rest in camp until the infection has cleared up and she is no longer fatigued, in the opinion of the medic. However, if she continues to refuse the medication then it might be best to send her home and suggest she sees her own GP.

If she tries to go to work, prevent her from entering the mine site. Make it clear that by trying to continue working she ignoring the company's reasonable instruction and is breaching her employment contract. Make sure she understands that her employment may be terminated if she continues to ignore the instructions of the company medic (and presumably her supervisor), by trying to enter the mine site.

Without more information I would not suggest you actually terminate her employment without expert advice, but at the very least you must be able to send her home while you seek further advice.

Frankly, as a company operating a mine site in a remote location, I really think you should have clear company policies that cover such scenarios and employment contracts that enable you to safety control your site.

[AlexT]

I think you are in a confidentiality predicament as well. The medic surely has a duty to protect the confidential medical information of the employee (which it seems they haven't). If this had been done, you probably wouldn't know that they weren't taking their medication.

However, as you already know this and believe it is a serious OHS risk you can offer a first and final warning, that they need to remain offsite until they are better. If they return to site then you can terminate them. But you would have to have very strong evidence that their being on site is a OHS risk. If you have clear policies and procedures that handle OHS breach with a first and final warning then it makes it much easier to action this type of thing.

[roxie]

Hi,
If the employee is deemed unfit to return to normal duties by medic they are required to comply with restrctions until medic clears employee fit to return to normal duties.
Has the medic issued the employee with unfit med cert?.