What does it mean for my employer to give procedural fairness?
Procedural fairness broadly relates to the decision-making process followed or
If you are an adult and have the capacity, you have the right to self-autonomy at common law and may refuse medical treatment (Hunter and New England Area Health Service v A [2009] NSWSC 761). Employers, however, have a responsibility to provide a safe workplace under section 21 of the Occupational Health and Safety Act 2004 (Vic), and as such, may direct an employee to obtain a COVID-19 test to ensure the safety of all other employees. It is implied in every employment contract that employees must obey lawful and reasonable directions from their employer. Therefore, an employer may be able to require their employee to take a COVID-19 test if it is a lawful and reasonable direction.
A lawful direction is one that is within the scope of work of the employee’s contract and does not constitute an illegal act will be lawful (Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374). The direction does not have to be the most relevant or best action at the time to be reasonable (Briggs v AWH (2013) IR 231 15). Instead, the court would likely look at relevant factors such as the terms of the employment agreement, the nature of employment, the employee’s position within the business and what is customary within the particular workplace or industry.
Within the context of COVID-19, these considerations may change. For example, it may be reasonable to direct an employee to obtain a COVID-19 test if they are symptomatic and an essential worker or if that employee has recently been in a designated hotspot area, given that individuals may remain asymptomatic for a period of time. As such, even if an employee is not displaying symptoms, requiring a negative COVID-19 test before entering the workplace may be a reasonable direction to ensure the safety of others. Further, the physical workplace may be taken into consideration as well. For example, the ability to maintain physical distancing and whether it is inside or outdoors may affect whether a direction is reasonable. If an employee is solely working from home due to current restrictions, it may not be reasonable to direct them to obtain a COVID-19 test, given that they do not pose a threat to the safety of other employees.
Whether an employee has to obtain a COVID-19 test as part of a ‘reasonable and lawful’ direction will depend on the circumstances of each case and the nature of the individual’s employment. Employees concerned about whether a request to get a COVID-19 test was reasonable should seek legal advice about their rights and obligations.