The Fair Work Commission decision in Mr Bertus Moers v The Trustee for Williamson Family Trust [2025] FWC 1344 (the Moers Case) is a timely reminder for employers about the importance of clear contractual rights to require independent medical examinations (IMEs).
While employers often assume they can request further medical information where fitness for work is unclear, the Moers Case shows that this assumption can be risky unless the employment contract expressly permits it. The outcome turned squarely on contract drafting and the consequences for getting it wrong can be significant.
What happened in the Moers Case?
Mr Moers was employed as a Senior Relationship Manager. In late 2024, shortly before overseas travel, he went on leave and subsequently provided a series of medical certificates stating that he was “unfit for work” for an extended period, ultimately until the end of December.
The employer became concerned about the length of the absence, the lack of detail in the certificates, and inconsistencies in the reasons given. To clarify whether Mr Moers was fit to return to work, and whether any adjustments were required, the employer directed him to authorise contact with his treating doctor and participate in a medical capacity assessment.
Importantly, the employer relied on a clause in Mr Moers’ employment contract requiring him to participate in medical examinations relevant to his employment.
Mr Moers refused, raising privacy concerns and asserting the direction was not lawful. After warnings and further opportunities to comply, his employment was terminated for serious misconduct. He then brought an unfair dismissal claim.
The Fair Work Commission dismissed the claim, finding the dismissal was fair.
Why did the employer succeed?
The decisive issue was the employment contract.
The Commission found the direction to participate in a medical assessment was lawful and reasonable because the contract expressly required Mr Moers to participate in medical examinations relevant to his role. By signing the contract, he had already provided consent for this type of request.
Critically, the Commission stated that without the contractual clause, the direction would not have been lawful or reasonable in the absence of the employee’s consent. That single sentence should be a red flag for employers.
The refusal to comply with a lawful and reasonable direction – where it is consistent with the contract – amounted to serious misconduct under the Fair Work Regulations, justifying summary dismissal.
The risk if your contracts are silent
Many employers rely on general notions of “lawful and reasonable directions” or assume WHS obligations are enough to justify requesting an IME. The Moers Case shows this may be risky.
If an employment contract is silent or poorly drafted, employers face real risks:
- A direction to attend an IME may be found unlawful, even where there are genuine concerns about fitness for work.
- Disciplinary action or dismissal for refusing an IME may be vulnerable to unfair dismissal claims.
- Privacy objections are harder to overcome without express contractual consent.
- Employers may be left managing extended or unclear absences with limited options.
In short, the employer in Moers won because of the contract, not despite it.
What should an IME clause cover?
Well-drafted employment contracts should clearly state that employees may be required to:
- attend medical or fitness-for-work assessments;
- provide medical information relevant to their capacity to perform the role safely; and
- participate in assessments where reasonably required by the employer.
The clause should be role-relevant, proportionate, and clearly connected to work capacity, not a general right to access medical history. Overly broad clauses can create their own risks, particularly under privacy and discrimination laws.
Drafting should be appropriate for the employee’s specific position.
The value of a fitness-for-work policy
Contracts should not operate in isolation. Employers should also consider implementing a fitness-for-work policy, either standalone or integrated into WHS or leave management policies.
A clear policy helps by:
- explaining when fitness concerns may arise (e.g. extended leave, inconsistent certificates, safety-critical roles);
- setting out the process for requesting further medical information or an IME;
- reinforcing that requests are linked to WHS obligations and safe return to work; and
- ensuring consistent, defensible decision-making.
From a risk perspective, policies support the argument that directions are reasonable, structured and non-arbitrary – particularly important if matters escalate to the Commission.
Practical takeaways for employers
The Moers Case delivers some straightforward lessons:
1.
Review your employment contracts
Ensure they contain a clear, enforceable clause allowing medical assessments and IMEs where appropriate.
2.
Check your policies
A fitness-for-work policy strengthens your position and provides clarity for managers and employees alike.
3.
Do not rely on assumptions
WHS duties alone may not be enough. Without contractual authority, your direction may fail.
4.
Get advice early
Once medical issues become contentious, the risks escalate quickly.
If you are unsure whether your employment contracts or fitness-for-work policies adequately protect your business, we can assist with a targeted review and update.
Get in touch!
If you’ve got any burning questions about this information or you’re not sure how it impacts your business, reach out to our team by email hello@flawlesshr.com.au
