Last week I was visiting a client and they posed this question to me following a real life scenario. I thought you might be interested in my answer.
Here’s the scenario:
An employee, let’s call him Charlie, receives a nasty knock to the head from a piece of equipment. There’s a deep laceration, a fair bit of blood and he’s feeling pretty woozy. First aid is administered straight away, but your gut is telling you this is a bit more than your standard first aid injury.
Charlie doesn’t want to make a fuss, assures everyone he’s fine and just wants to get on with the job. He’s already making his way out of the treatment room to get back on the tools. You can tell that he’s still bleeding under that bandage and he’s not very steady on his feet.
You insist to Charlie that he goes to the doctor but he tells everyone to harden up and let him get on with it.
Firstly, if an injury is serious enough, call an ambulance. It wasn’t warranted in this case but please never hesitate. Be aware that for a work injury the cost won’t be covered by an ambulance membership so the employer will need to pay the bill or have it paid against a claim if one is lodged.
Under Occupational Health and Safety legislation in every state in Australia employers have an obligation to prevent injuries and provide a safe workplace. You have a duty of care. This includes having safety systems to prevent Charlie’s injury in the first place but if you are concerned that he’s not fit to get straight back to work you may be negligent to allow him to continue working. What if he causes another, more serious, injury to himself or others?
Can you direct an employee to attend treatment?
Not really, but it depends a bit on the circumstances.
I would never issue a management directive for a worker to undergo surgery for example. Legally you can’t. Plus would you want to be liable for any complications as a result of surgery?
However in the case where an employee, over time, is not participating in treatment plans, rehabilitation and medical examinations you may find yourself developing a case for non-compliance. Injured workers have an obligation to make all reasonable efforts to return to work or else put their entitlements at risk.
A consistent and non-judgmental paper trail is critical in supporting a case like this.
In Charlie’s case we’re not going to issue a management directive for him to receive treatment. So where to next?
Can you direct an employee to obtain a clearance?
Yes, but you need to go about it the right way.
One option is to stand the worker down until he produces a clearance. We know from the case of Columbine v The GEO Group Australia Pty Ltd that under certain circumstances an employer can direct an employee to provide medical information.
The problem I see with this option is that the worker is being stood down. You may end up being liable to pay Charlie for the time off and it’s probably going to get him offside unnecessarily. We should always strive for a positive work environment and this is a bit adversarial for an initial response in my opinion. There’s no urgent need for Charlie to spend time away from work.
The importance of using your company-nominated doctor (Consultant Doctor)
My preferred response to Charlie’s situation is to invite him to a Consultant Doctor – a doctor of your choosing with whom you have an established rapport. The Consultant Doctor can check whether he needs any physical constraints in place or whether he’s fit for normal duties.
But why would Charlie go to the Consultant Doctor if he’s refusing to even see his own doctor?
My experience is that when you utilise a Consultant Doctor regularly and consistently you will establish a culture in your workplace of trust and cooperation. People will grow to understand it’s not a big deal and “it’s just what we do here”.
preVentia implements a process with a series of letters for our clients to invite the worker to the appointment, offer suitable duties, confirm a full clearance and so on. I urge you to do similar or call me if you need some help. It is critically important to engage your process consistently, even with the not-so-serious cases. Your process will become ingrained in your culture. Under these circumstances I feel confident Charlie would have had no hesitation participating in a Consultant Doctor process.
Until next time.
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