The Federal Court has found that a coal mine employer was within its rights to direct an employee to undergo a medical assessment with a specific medical practitioner.

Implications for employers

Employers may direct employees to undergo a medical examination in limited circumstances. This may be supported by clear contractual provisions or legislative authority. These powers are more likely to be defensible where they are necessary to address health and safety risks.

Background

The applicant, Mr Grant, was a boilermaker at a central Queensland coal mine from 2003 until he was dismissed on 17 May 2013. Mr Grant injured his shoulder in October 2011 while working at the mine. He subsequently sustained injuries to his shoulder, both at work and outside of working hours, between October 2011 and July 2012. In July 2012, Mr Grant commenced 9 months of sick leave. In September 2012, Mr Grant underwent shoulder surgery and commenced rehabilitation so as to return to his pre-injury capacity as a boilermaker.

Mr Grant returned to work on 2 April 2013 and produced a medical certificate. The certificate, signed by Dr Peter Bastable, stated:

This is to certify that Mr Darrin Grant is fit to return to his normal duties and from Monday April 1st 2013.

Mr Grant was immediately told by his manager to see an occupational therapist. The reasons given for this requirement were to assess any ‘restrictions’ on Mr Grant’s work capacity and in observance of the company’s ‘PPI policy’ (physical or psychological impairment). Mr Grant was sent home.

Mr Grant was formally advised via letter to attend a medical examination with an occupational physician on 17 April 2013. Mr Grant subsequently failed to attend the organised appointment and an appointment rescheduled for that afternoon. The reasons provided by Mr Grant for this absence included that he did not have documentation, including x-rays. This documentation was not considered essential for the assessment.

Mr Grant was informed that an investigation into his refusal to attend the medical examination would be undertaken and he was suspended under the applicable enterprise bargaining agreement. After a series of meetings in which Mr Grant refused to cooperate, his employment was terminated.

The letter of termination dated 17 May 2013 outlined the reasons for termination including the failure to attend the medical appointment, on numerous occasions attempting to record conversations without the consent of the involved parties, his refusal to cooperate and participate in investigative interviews, a failure to treat other employees with courtesy and an uncooperative attitude and demeanour.

Decision at first instance

Mr Grant made an unfair dismissal claim under the Fair Work Act 2009. BHP, rather than relying on a contractual right to direct an employee to attend a medical examination, relied upon a provision of the Coal Mining Safety and Health Act 1999 (Qld) (CMSH Act). The relevant provisions required that a coal mine worker, or person at a coal mine, who may affect the safety and health of others at a coal mine has an obligation to take any reasonable and necessary course of action to ensure anyone is not exposed to an unacceptable level of risk.

BHP argued that the CMSH Act imposed a duty to ensure that no one is exposed to an unacceptable level of risk. The duty created a power to take reasonable and necessary action to shield workers from unacceptable risk. Accordingly, an employee could be ordered to undergo a medical assessment. Commissioner Spencer accepted this reasoning and found that the direction was lawful under the CMSH Act and reasonable.

In considering that the direction was reasonable, Commissioner Spencer considered that the medical evidence initially provided by Mr Grant was insufficient and did not focus on an occupational assessment. The Commissioner also noted that the only information provided regarding his injury was the ‘clearance’ provided upon his return to work; there was little contact over the 9 month absence by either the employee or employer regarding the employee’s condition and that, given these circumstances and the safety requirements of the mine, seeking further information was reasonable. Additionally, the reason Mr Grant gave for not attending, not having various medical reports and scans, was invalid, given that these were not necessary for the assessment.

It followed that Mr Grant’s refusal to attend the medical examination formed part of a valid reason for dismissal, along with the subsequent failure to cooperate with the investigation.

Decision of a Full Bench of the Fair Work Commission

On appeal to a Full Bench, it considered additional provisions of the CMSH Act and its regulations and determined these provided a basis for BHP to require a medical examination. The Full Bench considered that although the statutory authority was expressed in broad terms, the direction to attend a medical assessment fell within its scope. Because of this statutory basis and Mr Grant’s refusal to attend the appointment, as well as Mr Grant’s refusal to participate in the subsequent investigation into the matter, it was open for Commissioner Spencer to have concluded there was a valid reason for dismissal.

Decision of the Federal Court

In affirming the Commission decisions, the Federal Court noted that the common law right not to be forced to undertake a medical examination could only be abrogated by clear parliamentary intention or other lawful authority. The Court confirmed that the CMSH Act, even in its broad terms, evidenced the intention that an employer is entitled to direct an employee to undergo a medical examination in certain circumstances. The employer, in this case, was entitled to this direction before allowing the employee to work, in circumstances where health concerns may expose the employee or other persons to an unacceptable level of risk.