Grant v BHP Coal [2014] FWCFB 3027 

The Fair Work Commission has held that BHP was within its rights to dismiss a boilermaker who refused to attend an appointment with a company-nominated doctor to determine his fitness for work.  

The boilermaker had suffered a shoulder injury and consequently had been off work recovering for eight months. Before his injury, the boilermaker had been engaged in heavy manual labour on a mining site at Peak Downs. He had provided medical certificates from treating doctors proving the extent of the injury. However, BHP required him to see its own physician so that it could assess the duties for which he was fit, in accordance with its obligations under s 39(1) of theQueensland Coal Mining and Health Act.  

Under that section, employers must ensure that workers are not exposed to an unacceptable level of risk. This obligation, and the complementary obligation of the employee to comply with safety-related instructions of the coal mine operator, gave the force of the law to BHP's instruction to attend the doctor, who was an occupational health specialist. Consequently, the direction was lawful and fell within the scope of the boilermaker's contract. The boilermaker had consequently refused to obey a lawful direction, and the employer was within its rights to terminate the employment. 

Key Takeaway

The key takeaway for employers is that there is no entitlement for employees to refuse to comply with directions from their employers that are expressly directly at maintaining safety on site. Employees should be made aware of their obligations to comply with such directions and the consequences that may flow from disobedience.

Andrew Berriman