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A recent Fair Work Commission (FWC) decision has highlighted how small business employers can lawfully dismiss an employee who refuses to provide medical information – as long as the employment contract clearly allows it.
The Case
In Moers v The Trustee For Williamson Family Trust [2025] FWC 1344, the FWC sided with a small business that summarily dismissed a Senior Relationship Manager for failing to provide medical clearance from his doctor. The employer had requested this information under a clause in the employee’s contract, which gave the company the right to require participation in medical assessments relevant to the role.
Timeline of Events
The employee was originally scheduled for a disciplinary meeting on 11 October 2024 due to concerns about his conduct and performance.
On the day of the meeting, he said he was unwell and couldn’t attend.
The employer rescheduled the meeting to 16 October 2024, the date he was due back from pre-approved leave in New Zealand.
However, on 15 October, the employee emailed the employer stating that he was extending his stay in New Zealand until 21 October to care for family members. Once again, the employer agreed to delay the meeting.
From that point on, the employee didn’t return to work and began submitting medical certificates:
17 October: Certificate stating he was “unfit for work” until 1 November 2024
4 November: Certificate extending leave until 20 November, citing “medical reasons”
20 November: The employee did not return. A third certificate followed, declaring him unfit until 31 December 2024 due to an “issue with [his] ear”
The employer became concerned about the vague and inconsistent medical reasons and the lack of detail in the certificates.
Employer Action
To clarify the situation, the employer sent a letter to the employee asking for written consent to contact his general practitioner (GP) for a capacity review. A draft letter was included outlining the questions to be sent to the doctor regarding the employee’s fitness for work.
The employee refused to provide consent.
The employer reminded the employee that the request was a reasonable and lawful direction under the employment contract, which included this clause:
“You have participated in, or will agree to participate in any background check and/or medical examination relevant to your position and/or your employment with the Employer.”
The employee didn’t respond. As a result, the business terminated his employment immediately on the basis that he had refused to follow a lawful and reasonable direction.
Unfair Dismissal Claim
The employee challenged the dismissal, lodging an unfair dismissal application. He claimed the employer’s request to access medical information was a breach of his privacy rights under the Privacy Act 1988 (Cth), and therefore, the dismissal was unfair.
Because the employer was a small business, the FWC had to assess the situation under the Small Business Fair Dismissal Code, including whether:
- The employer’s direction was lawful and reasonable
- The employee’s refusal justified immediate dismissal
The Commission’s Decision
The FWC accepted that the employee had genuine concerns about sharing personal information. However, it found that the employer’s request:
- Was limited to employment-related health matters
- Was lawful and reasonable, based on the signed contract
- Did not breach the Privacy Act, because the employee had already provided consent by signing the contract
The FWC noted that without a clause like this in the contract, the employer’s request might not have been lawful or enforceable.
The refusal to comply was considered serious misconduct, as defined by the Fair Work Regulations 2009 (Cth), which include:
“Refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.”
The FWC ruled that the small business had complied with the Code and was within its rights to terminate the employee’s contract. The application for unfair dismissal was dismissed.
What SMEs Should Learn from This
This case is a valuable reminder to small business owners and employers:
Ensure your employment contracts include a clear clause requiring employees to participate in medical assessments when their fitness to work is in question.
A well-documented process and consistent communication will support your position if a dispute arises.
Lawful and reasonable directions grounded in a written contract hold up under the Fair Work system — even for small employers.
Privacy rights apply, but they can be managed appropriately through prior consent in employment agreements.
In this case, the employer’s upfront documentation and use of the correct processes made all the difference.
