Employer fails to have employee medical records produced when defending stop bullying application

07 October 2021

The Fair Work Commission has refused to grant an order requiring an employee’s doctor to hand over her medical records as it may have a “harmful impact” on her health and wellbeing.

In issue

  • Whether the order for production of medical documents was necessary to establish the bullying alleged in the Employee’s stop bullying application.

The background

The Employee made an Application for an order to stop bullying against her Employer. In response, the Employer sought s 590(2)(c) production orders requiring the Employee’s treating medical practitioner to provide all records relating to treatment given to her during the alleged bullying period.

It is important to note the FWC is not bound by the rules of evidence and procedure.1 However, the FWC does have power to inform itself “by requiring a person to provide copies of documents or records, or to provide any other information to the FWC”.2

The Employer asserted:

  • the documents were relevant to a fact put in issue by the Employee, i.e., her mental state during a period of alleged bullying and the content of the medical records bear upon that issue;
  • the emotional and psychological state of the Employee was a relevant consideration in assessing whether the alleged bullying conduct was reasonable management action or unreasonable conduct;
  • the Employee had stated she would produce some medical records so there was no reasonable basis to resist the order; and
  • it was willing to agree to a suitable confidentiality order if necessary.

The decision at the hearing

It has been well established that the Fair Work Commission (FWC) has discretion to order any person to provide copies of documents, records, or other information as it sees fit in determining that matters before it.3 In this case, the FWC held that the documents were not sufficiently relevant to order production.

The FWC noted its task was to establish whether the Employer had engaged in behaviour amounting to bullying within the meaning of the Fair Work Act. That task included the objective test of whether an individual or group of individuals repeatedly behaved unreasonably towards the Employee, and that that behaviour created a risk to health and safety.

The FWC concluded that even if it was satisfied that the medical documents were relevant, it would not exercise its discretion to order its production. The FWC agreed that if such an order was made, this would discourage the Employee from seeking medical care because of a concern that any material could be required to be disclosed to her Employer. Moreover, the FWC considered it may have a harmful impact on the Employee’s health and wellbeing and that simply attaching confidentiality conditions would not be sufficient to defeat this harm.

Key takeaways

Employers should exercise caution when dealing matters before the FWC and be aware that the FWC may not require production of an Applicant’s medical records when examining whether bullying occurred. The health and wellbeing of the subject of the medical records was a significant consideration for the FWC in not requiring production.

It is a good reminder for employers and managers when conducting any investigations into complaints or grievances, to ensure notes and records are taken and maintained. Further, during the grievance process, consideration should be paid to whether the employee is fit to continue with the investigation and this may be supported through having the employee obtain a medical clearance.

This article was co-authored by Laura Sowden, Anna Ly and Theresa Au.

Application by Lydia Yew [2021] FWC 5946

1 Fair Work Act 2009 (Cth) s 591.
2 Fair Work Act 2009 (Cth) s 590(2)(c).
3 Esso Australia Pty Ltd v AWU, AMWU and CEPU [2017] FWCFB 2200 at [6].

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