A recent series of appeal decisions relating to an employer's decision to sack an injured worker after he refused to see a company doctor reinforce the ability of employers to direct employees to see their own doctors in appropriate circumstances.

In Issue

  • Whether an employer can direct an injured worker to attend a medical appointment with the employer's own doctor.

Background

Mr Darrin Grant (Grant) was employed with BHP Coal as a boilermaker at a mine in central Queensland. As a result of a shoulder injury that he sustained at work he underwent surgery and took extended periods of sick leave for approximately 8 months.

In March 2013, Grant provided to BHP medical certificates from his GP and his orthopaedic surgeon certifying him fit to return to his normal duties from 1 April 2013.

When Grant attended the mine to recommence work his superintendent directed him to see a company doctor and sent him home on full pay until an appointment could be arranged for this purpose.

The purpose of this examination was to understand any limitations regarding his fitness for work.

Grant refused to attend this appointment. As a result, BHP informed him that his failure to do so would result in disciplinary action. BHP arranged a second medical appointment with its company doctor which Grant again refused to attend.

BHP then informed Grant that an investigation was being conducted into his refusal to attend these appointments and directed him to attend a meeting for this purpose. At this meeting, Grant refused to answer any questions unless they were put to him writing. BHP declined this request.

BHP held a further meeting with Grant at which he was given a notice to show cause why his employment should not be terminated as a result of his refusal to attend the two medical appointments and to participate in the investigation interview. This was said to amount to a failure to follow a lawful and reasonable direction, contrary to Grant’s obligations as an employee (Show Cause Notice).

Grant’s response was that he considered the direction to attend the appointment with the company’s doctor to be unlawful and unreasonable. He argued that he had therefore not failed to follow any reasonable direction.

At a subsequent meeting, BHP terminated Grant’s employment for the reasons set out in the Show Cause Notice.

Grant then filed an Unfair Dismissal Application with the Fair Work Commission (FWC).

Decision at trial

The FWC dismissed Grant’s Unfair Dismissal Application. It disagreed with his views that BHP’s directions were unlawful and unreasonable and that he did not have to participate in a meeting or be compelled to answer questions during the investigation.

Key issues that the FWC considered in arriving at its decision included the following:

  • s39(1)(c) of Queensland’s Coal Mining Safety and Health Act 1999 (CMSH Act) which provided that a coal mine worker who may affect the safety and health of others at a coal mine as a result of coal mining operations was obliged to take ‘…reasonable and necessary course of action to ensure that anyone is not exposed to an unacceptable level of risk
  • that Grant had been absent from work for eight months during which there had been very little contact between him and BHP and no arrangements had been put in place for his return to work
  • Grant was required to perform potentially dangerous work in a dangerous workplace.

The FWC considered that it was reasonable in those circumstances for BHP to confirm the employee’s capacity to return to his normal duties.

It noted that the specialist that BHP had asked Grant to see was an occupational physician who had knowledge of the mining industry and its operations, whereas Grant’s treating doctors did not have this speciality. The FWC therefore concluded that it was reasonable for BHP to require Grant to attend this appointment.

The FWC also found that Grant’s failure to respond to the superintendent’s questions at the interview unless they were put in writing was unreasonable and improper. For these reasons the FWC found that the termination was not harsh, unjust or unreasonable and dismissed the application.

Issues on appeal

Grant appealed this decision. One of his key arguments was that every person has a fundamental right to refuse to undergo a medical examination against their will.

His appeals to a full bench of the FWC and then to the Federal Court of Australia were unsuccessful. Grant made yet a further appeal to the Full Federal Court of Australia (FFCA).

Decision on appeal

The FFCA found that BHP’s direction to Grant to see its doctor was consistent with the requirements of the CMSH Act.

It rejected Grant’s argument that every person has a fundamental right to refuse to undergo a medical examination against their will. Although it acknowledged this right, the FFCA stated that it was subject to legislative limitations. The CMSH Act contemplated that if the medical condition of a coal mine worker could create a risk to health and safety then an employer might require that worker to attend a medical appointment to alleviate that risk.

The FFCA therefore supported the decision of the primary judge and of the FWC in deciding that BHP’s directions to Grant to attend a medical appointment were authorised under s39(1)(c) of CMSH Act.

Implications for you

Each of the decisions in this matter give employers comfort that provided that there is a statutory basis for them to direct an employee to undertake a medical examination with a doctor of the employer's choosing, and as long as there is a legitimate reason for doing so, that they may direct a worker to see their nominated doctor.

However, in doing so employers should also ensure that they follow correct processes to avoid the risk of a number of claims that could arise (including unlawful discrimination and adverse action). Where they encounter an employee who is uncooperative, the processes that BHP adopted in this matter serve as a good example of best practice to be followed.