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How it's done

Some key things to remember:

Lawful, reasonable and appropriate

A direction to attend a health assessment must be issued responsibly, in good faith and in a way that is consistent with the APS Values, the APS Employment Principles and the Code of Conduct. You, along with all APS employees, are bound by the requirements of the Values, the Principles, and the Code and must, at all times, behave in a way that upholds these requirements.

The direction must also be lawful and reasonable. That is, the direction must be based on a genuine indication that there is a need for the employee to undergo an assessment14.

Lawful direction

‘A direction to an APS employee can be lawful if it involves no illegality and if it is reasonably adapted to protect the legitimate interests of the Commonwealth as an employer or to discharge the obligations of the Commonwealth as an employer. Also, the direction must be reasonable in all the circumstances15.’

Administrative Obligations in the Australian Public Service, Australian Law Reform Commission

Reasonable direction

‘Common law permits an employer to direct an employee to attend a medical assessment provided that the direction is reasonable. The question of whether a direction is reasonable will always be a question of fact, as will the question of what are reasonable terms for the undertaking of the medical assessment16.’

For example, it may be unreasonable to require an employee to attend a psychiatric assessment for a wrist injury.

Go to the Doctor! Directing an employee to attend a medical assessment, Ashurst Australia

Who's involved?

Who is involved in your health assessment process will depend on your agency's health assessment policy. Generally it will be:

  • you (the employee)
  • your manager
  • your human resources area (or, in some cases, a case manager), and
  • the nominated medical practitioner.

Your treating medical practitioner (your GP or specialist) may also be involved in the process, including continuing to provide you with any ongoing treatment or rehabilitation.

You are a key participant in this process and you have an important role to play in achieving a successful outcome from your health assessment. You have a say, and if you have any concerns you should raise them with your manager, human resources team or your case manager.

What about privacy?

Under the Privacy Act 1988, your health-related information is considered both personal and sensitive. The Public Service Regulations 1999 provides for a copy of your health assessment report to be given to your agency without your agreement. This is permitted under the Australian Privacy Principles because the collection of the information is ‘required or authorised by or under an Australian law or a court/tribunal order’17. You are also entitled to a copy of this report.

In most cases, only you, your human resources team (or case manager), and the nominated medical practitioner will have access to the report from your health assessment, unless you agree otherwise or your agency's policy allows for different arrangements.

When you are advised in writing of your health assessment, your agency may also provide you with a collection notice explaining why the information is being collected and how it will be used (including if the information is to be provided to other people) and stored.

Information about your health must be kept confidential and private. When you tell someone about your health condition in the work context, that person should not tell anyone else without your consent. Generally, this information can only be used for the purpose for which it was disclosed, such as to make reasonable adjustments.

Your agency should have a privacy policy detailing how your personal information is dealt with. You can obtain a copy of this from your human resources area.

Respectful relationships

Good relationships are built on trust, open communication and respect. However, they don't just happen—they require work! Circumstances involving your health or health-related issues at work can be particularly sensitive and may require some difficult conversations with your manager or human resources team, which can put pressure on even the best working relationships.

As part of your usual approach to building and maintaining good working relationships, remember to:

  • listen and be open to other people's ideas and perspectives
  • communicate effectively by tailoring your message, and
  • encourage and lead others to foster good relationships in the same way.18

If your health assessment process causes your relationship with your manager to deteriorate, you should seek assistance from your human resources team to resolve the issue.

Make sure you look after yourself. You can seek confidential counselling, support and advice through your agency's Employee Assistance Program.

What is workplace harassment and bullying?

Workplace harassment includes offensive, belittling or threatening behaviour towards an individual or group of employees. The behaviour is unwelcome, unsolicited, usually unreciprocated, and often repeated.

While there is no standard definition of workplace bullying, this term is generally used to describe repeated behaviour in the workplace that could reasonably be considered to be humiliating, intimidating, threatening or demeaning to an individual or group of individuals. It can be overt or covert, inflicted by one person or by groups. Abusive group behaviour or ‘ganging up’ against one or more individuals is a form of bullying that is sometimes called workplace ‘mobbing’19.

Respect—Building a positive work environment, Australian Public Service Commission

What is not workplace bullying?

Reasonable management action, taken in a reasonable way, is not considered workplace bullying. It is reasonable for managers to provide work to their staff, give directions and provide feedback on an employee's performance. These actions are not considered workplace bullying if they are carried out lawfully and reasonably, taking the particular circumstances into account. Examples include:

  • setting reasonable performance goals, standards and deadlines
  • rostering and allocating working hours where the requirements are reasonable
  • informing a worker about unsatisfactory work performance in an honest, fair and constructive way
  • informing a worker about inappropriate behaviour in an objective and confidential way
  • implementing organisational changes or restructuring
  • investigating or taking disciplinary action20.

Guide for preventing and responding to workplace bullying, Safe Work Australia

What should I do if I feel like I am being bullied or harassed in relation to my health assessment?

Workplace harassment and bullying is unacceptable and is not tolerated in the APS. The APS Code of Conduct is explicit in its requirement that APS employees ‘must… when acting in connection with APS employment, treat everyone with respect and courtesy and without harassment.’21 Bullying or harassment may also be unlawful under anti-discrimination legislation (such as sexual harassment or bullying related to a disability).

Bullying and harassment are health risks in their own right and can also exacerbate existing conditions. Your agency's duty of care when it comes to your safety, health and wellbeing in the course of your APS employment applies to situations of workplace bullying and harassment in the same way it applies to other workplace risks.

If you feel that the direction to attend a health assessment is a symptom of workplace bullying, or in response to other claims of bullying, you should take action. The following steps will help you do that:

  1. Find out if your agency has a workplace bullying policy
    Your agency's policy should outline the complaint procedure and who you can talk to about workplace bullying. This information may also be included in your agency's workplace agreement.
  2. Seek advice
    You have a range of options (both informal and formal) to report, or get advice on, harassment or bullying, for example:
    • your manager (or higher)
    • a trained harassment contact officer
    • your human resources team
    • your agency's employee assistance programme.

    You should not make allegations about bullying behaviour to people who are not involved in handling complaints22.

  3. Keep a record
    Bullying can sometimes be difficult to define and to prove. Keeping a diary or record of incidents may help you to illustrate a pattern of events. If necessary, this record could constitute valid evidence in an investigation. You may want to record:
    • when and where the bullying behaviour occurred, what was said or done, how it made you feel, who was involved, potential witnesses
    • the names and details of people willing to support your claims
    • any written evidence such as documents or emails.23

Informal resolution

Depending on the circumstances, an informal resolution process can be an effective way of resolving workplace issues. Informal processes can be appropriate if it is a single incident, the behaviour appears to be unintentional, it looks like the issue can be resolved within the work area, and you (or the person who raised the issue) have agreed to the informal approach.

The outcome of an informal resolution process could be a clearer understanding of the person's concerns, an apology, an agreement about future behaviour, or improved work practices.

Formal resolution

There is also a range of options for formal complaint. You may choose to:

  • use the formal mechanisms included in your agency's workplace agreement
  • report the behaviour to your workplace diversity or harassment contact officers
  • report the behaviour to your human resources team
  • approach the Australian Human Rights Commission.

You may also be able to seek a review of the outcome of a resolution process, by making a review application to your agency head or to the Merit Protection Commissioner24.


Footnotes

14http://www.mauriceblackburn.com.au/about/media-centre/newsletters/employment-industrial-law/issue-16-2013/dealing-with-directions-to-attend-medical-examinations/

15 Australian Law Reform Commission, Administrative Obligations in the Australian Public Service, http://www.alrc.gov.au/publications/12-administrative-obligations-australian-public-service/background

16 Ashurst Australia, 2013, Go to the Doctor! Directing an employee to attend a medical assessment, www.ashurst.com/doc.aspx?id_Content=9643

17 Australian Privacy Principles, http://www.oaic.gov.au/privacy/privacy-resources/privacy-fact-sheets/other/privacy-fact-sheet-17-australian-privacy-principles

18http://www.qld.gov.au/jobs/balance/pages/relationships.html

19 Australian Public Service Commission, Respect—Building a positive work environment, http://www.apsc.gov.au/publications-and-media/current-publications/respect-building-a-positive-work-environment

20 Safe Work Australia, Guide for preventing and responding to workplace bullying http://www.safeworkaustralia.gov.au/sites/swa/about/publications/pages/guide-workplace-bullying

21 Australian Public Service Commission, Code of Conduct http://www.apsc.gov.au/aps-employment-policy-and-advice/aps-values-and-code-of-conduct/code-of-conduct

22 Comcare, Bullying at work—A Guide for employees.

23 Comcare, Bullying at work—A Guide for employees.

24 Australian Public Service Commission, Respect—Building a positive work environment, http://www.apsc.gov.au/publications-and-media/current-publications/respect-building-a-positive-work-environment