A Full Bench of the Fair Work Commission (FWCFB) has held that in light of an employer’s duty under theCoal Mining Health and Safety Act 1999 (Qld) (CMHS Act) to ensure that employees are not exposed to unacceptable risks on mine sites, the employer could lawfully issue a direction requiring an employee to undergo a medical examination to assess exposure to risk.
Implications for employers
Employers who are subject to the CMHS Act may lawfully issue a direction requiring employees to undergo a medical examination to assess exposure to risk and may be able to dismiss a non-compliant employee. This finding may translate to other jurisdictions where a similar obligation exists to that under the CMHS Act.
Background: relevant law
An eligible employee who believes he or she has been unfairly dismissed from his or her employment may bring an unfair dismissal claim under section 394 of the Fair Work Act 2009.
Section 39(1) of the CMHS Act states that:
A coal mine worker or other person at a coal mine or a person who may affect the safety and health of others at a coal mine or as a result of coal mining operations has the following obligations—
to comply with this Act and procedures applying to the worker or person that are part of a safety and health management system for the mine;
if the coal mine worker or other person has information that other persons need to know to fulfil their obligations or duties under this Act, or to protect themselves from the risk of injury or illness, to give the information to the other persons;
to take any other reasonable and necessary course of action to ensure anyone is not exposed to an unacceptable level of risk.
Mr Grant was a boilermaker at BHP Coal’s (BHP) Peak Downs Mine. He injured his right shoulder at work and went on extended sick leave for eight months following surgery. On seeking to return to work, Mr Grant provided BHP with a medical certificate from his treating doctor which stated that he was “fit to return to his normal duties”.
BHP was not satisfied on the basis of this generalised medical certificate that Mr Grant could safely resume his pre-injury duties. Accordingly, BHP requested that Mr Grant attend an appointment with BHP’s nominated specialist (an occupational physician with specific knowledge of BHP’s mine operations) for an assessment before returning to work. Mr Grant was to be reinstated on full pay in the interim period.
After Mr Grant had cancelled this appointment several times, BHP issued a direction requiring Mr Grant to attend the specialist’s appointment. Mr Grant continued to refuse.
Following an investigation into Mr Grant’s refusal to attend the assessment, BHP terminated his employment.
Mr Grant brought an unfair dismissal claim, alleging that his dismissal was invalid because the direction to attend a medical assessment was unlawful and unreasonable.
Decision at first instance
At first instance, Commissioner Spencer found that BHP had the power under the CMHS Act to issue a lawful direction requiring Mr Grant to attend a medical assessment and that it was reasonable for BHP to do so in the circumstances of Mr Grant’s case. Accordingly, his failure to attend this assessment was valid grounds for termination and his dismissal was not unfair.
Mr Grant appealed to the FWCFB.
Decision on appeal
On appeal, the FWCFB, comprised of Senior Deputy President Richards, Deputy President Asbury and Commissioner Booth, upheld Commissioner Spencer’s decision, on the basis that BHP had issued a lawful and reasonable direction to which Mr Grant refused to adhere to despite being warned of the consequences of failing to do so. The FWCFB agreed with Commissioner Spencer that:
first, BHP’s direction to Mr Grant to attend the medical examination was lawful. The FWCFB held that section 39(1) of CMHS Act was a broadly drafted provision which empowered BHP to take “any other reasonable and necessary course of action to ensure that anyone is not exposed to an unacceptable level of risk”. This included the power to require employees to attend medical assessments; and
secondly, BHP’s direction to Mr Grant in this situation was reasonable. This was because:
the medical certificates that Mr Grant had provided to BHP were in a generic format and did not disclose the nature of his injury or the rehabilitation measures he had undertaken. As Commissioner Spencer had commented, “this situation alone would reasonably have caused BHP to seek further information” because coal mines are “inherently dangerous workplaces”;
the nature of Mr Grant’s role as a boilermaker “involved heavy manual tasks”;
Mr Grant’s injury was of a type that was “known to be exposed to aggravation”; and
Mr Grant had been absent from his position at BHP for a significant period of time.
Accordingly, Mr Grant’s claim was dismissed.
Mr Darrin Grant v BHP Coal Pty Ltd  FWCFB 3027