In the flurry of recent activity in the workplace relations space we thought we’d draw your attention to a case that may have slipped through.
Justice Jackson’s decision in Hastwell v Kott Gunning (No 5)  FCA 621 (read here), is a fascinating case study in the admissibility of medical evidence and the rights of the Court to stay a case in circumstances where the applicant employee refuses to attend an independent medical examination.
Mr Hastwell is seeking damages against his former employer, Kott Gunning, in relation to allegations of unlawful bullying, harassment and discrimination.
Whether Mr Hastwell’s claim will be successful ultimately depends on the state of Mr Hastwell’s mental health – before, during and after his employment with Kott Gunning. This of course turns on the medical evidence. Kott Gunning had requested Mr Hastwell be examined by a doctor of its choosing, however Mr Hastwell refused to do so. It’s this refusal to attend the medical examination which instigated the hearing.
Mr Hastwell believed that the direction to attend an independent medical examination constituted an invasion of his fundamental rights and breached the common law position that an individual has “control and self-determination” with respect to their body. The Court, in balancing the interests of the parties and the continuation of the proceeding, opted to impose a stay on the matter until Mr Hastwell submitted to a medical examination.
In acknowledging that this step was a ‘somewhat strong course’ and had the same effect as requiring Mr Hastwell to submit to a medical examination, Justice Jackson held that the Court had jurisdiction to ensure the just determination of its own proceedings. His Honour further held Kott Gunning would not be afforded a fair trial if Mr Hastwell was able to adduce medical evidence and Kott Gunning was not.
What can employers learn from this case?
The case provides contemporary authority that the Courts have the power to stay proceedings where an employee is attempting to rely on medical evidence but refusing to attend a medical examination at a doctor of the employer’s choosing and in response to the employer’s questions.
Employers should be resolute if an employee threatens proceedings whilst refusing to attend an independent medical examination, knowing that should proceedings be initiated, the first order of business is now to seek a stay pending the employee’s attendance at the independent medical examination.
We also anticipate that the decision will have a deterrent effect on employees who may otherwise refuse to attend a doctor of the employer’s choosing. With consequences for employees now made clear, employers should cite this authority in their cost letters to non-complaint employees.
If you have any questions regarding the above case or directing employees to attend independent medical examinations, please don’t hesitate to contact us.
 Hastwell v Kott Gunning (No 5)  FCA 621 at .
 Ibid at .
 Ibid at .