In the recent decision of Darrin Grant v BHP Coal Pty Ltd [2014] FWCFB 3027, the Full Bench of the Fair Work Commission upheld the decision of Commissioner Spencer who had previously dismissed Mr Grant’s unfair dismissal application.

Mr Grant, a former boilermaker, was dismissed from his employment on account of his failure to attend medical examinations organised by his employer, and because of his conduct during a disciplinary meeting held to address his failure to attend those medical examinations.

Mr Grant had sought to return to work after being absent from work for approximately 8 months due to a shoulder injury. He had produced medical certificates to his employer (including from his treating doctor and from an orthopaedic surgeon who had conducted surgery on Mr Grant), but they were only of a general nature.

It was on this basis that BHP directed him to attend a medical examination to perform a functional assessment with Dr McCartney, who was a trained occupational physician with specific knowledge of the employer’s mine operations. BHP made reference to the Coal Mining Safety and Health Act 1999 (Qld) as authorising this direction, on the basis that the legislation required the employer to ensure the safety of people at the mine at which Mr Grant sought to return.

Mr Grant failed to attend the medical appointment with Dr McCartney, giving the reason that he was told by the doctor that he could reschedule his appointment if he wished to have his medical information with him at the appointment. Mr Grant also failed to attend a subsequent appointment rescheduled later that day, saying that he did not receive a voicemail message informing him that the appointment was rescheduled.

In response to a show cause letter by his employer, Mr Grant continued to assert that the direction to attend a medical assessment was unlawful and unreasonable. He was subsequently dismissed for reasons that included refusing to attend the medical appointments, for refusing to participate in the disciplinary meeting (and otherwise being discourteous during that meeting).

In dismissing Mr Grant’s application, Commissioner Spencer determined that the direction to attend a medical assessment was lawful, and was also reasonable in light of Mr Grant’s extended absence, that his duties involved heavy manual labour, that he had recently undergone surgery, the generic nature of the medical certificates, and the fact that Dr McCartney has personal knowledge of the employer’s site.

Commissioner Spencer found that Mr Grant intentionally avoided attending the medical examinations organised for him, and also found that Mr Grant was aware that a failure to attend the medical appointments would give rise to disciplinary action against him.

Commissioner Spencer also found that Mr Grant unreasonably refused to participate in the disciplinary meeting, during which he refused to answer allegations unless they were placed in writing (particularly as the only question asked of him was “Can you run through what happened last Wednesday”).

On appeal, the Full Bench subsequently upheld Commissioner Spencer’s decision, and concluded that it was open to the Commissioner to make the findings that he did.

In particular, the Full Bench rejected Mr Grant’s arguments that his employer had no power to direct him to attend a medical assessment pursuant to the relevant mine legislation, or pursuant to his employment contract. The Full Bench concluded that the direction given by his employer was within the ambit of the relevant legislation, and in any event fell within the scope of his contract of service, as the direction was neither unlawful nor unreasonable. 

Conclusion

This decision is important, as it reinforces that an employer can lawfully and reasonably direct an employee to attend a medical assessment, particularly where the employee has been absent for a long period of time and where it is unclear from existing medical evidence whether the employee is fit for work.

Additionally,  the  decision  demonstrates that an employee’s refusal to answer allegations in a disciplinary context unless they are put in writing, may in some circumstances constitute a valid reason for termination.