AMMA employee relations lawyer Lindsay Carroll explains why the Federal Court recently upheld an employer’s decision to dismiss an employee who refused to attend a medical examination.

Lindsay Carroll

Lindsay Carroll

In Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374, the Federal Court held that the employee, who was dismissed in 2013, had not been unfairly dismissed in circumstances where the employee failed to comply with a reasonable and lawful direction by the employer.

Background

The employee (Mr Grant) was a boilermaker at BHP’s Peak Down’s Mine in central Queensland from 2003. In 2011, he sustained an injury to his shoulder at work which was further worsened by activities both during and outside of work. After a nine month absence from work and following shoulder surgery in 2012, the employee returned to work in April 2013 and provided BHP with a medical certificate stating that he was fit to return to his normal duties.

On that same day he returned to work, the employee was advised he would be required to see occupational therapists employed by BHP prior to commencing any work. This was a precautionary measure in line with company policy, in order to determine whether there were any restrictions on the employee’s capacity to work. The employee was then sent home and one week later was directed to attend a medical appointment that had been arranged for this medical assessment, which he did not attend. In the meantime, he attended the site for work but was refused entry.

The employee was then notified that BHP was conducting an investigation into his refusal to attend the appointment and from that day, the employee was suspended from duty. This was in accordance with the enterprise agreement.

Following a show cause notice, the employee provided a letter that claimed the direction to attend the appointment was unlawful and unreasonable. BHP then terminated the employee for a number of reasons, including refusing to attend medical appointments, attempting to record conversations without consent and refusing to cooperate in an investigation interview. All in all, this constituted a refusal to follow lawful and reasonable directions contrary to his obligations as an employee.

Federal Court decision

In coming to its decision in upholding the decision of the Full Bench of the Fair Work Commission, the Federal Court found that:

  • The supervisor was properly authorised by the site executive of the mine to give directions to the site’s coal mine workers in accordance with the safety and health management system at the mine (per the Coal Mining Safety and Health Act 1999 (Qld) (the Coal Act));
  • The direction to undertake a medical examination was lawful (per s 39 of the Coal Act, which requires compliance with instructions about safety and health);
  • The direction to undertake a medical examination was reasonable; and
  • There was a valid reason for the dismissal.

The relevant sections of the Coal Act in Queensland require strict adherence to safety standards. In coming to a decision, Collier J stressed the importance of s39(1) of the Coal Act, related to when there are health or other concerns in respect of an employee which could result in that employee – or anyone else – being exposed to ‘an unacceptable level of risk’.

While the Coal Act does not confer an unambiguous right on BHP to force Mr Grant to undergo a medical examination, the Court concluded that the safety requirements of the Act entitled BHP to direct an employee to undergo a medical examination. The Coal Act allowed BHP to make the direction to ensure the level of risk tied to coal mining operations is ‘within acceptable limits and as low as reasonably achievable’.

Aside from the requirement of attending a medical examination, the Federal Court also held that Mr Grant’s refusal to answer questions not in writing and participate in the investigation process “formed part of the valid reason for the dismissal”.

What can employers learn from this decision?

This decision reinforces the fact that an employer, so long as it is complying with its policies and procedures and relevant legislation, has authority to require an employee to attend a medical examination.

It also demonstrates the importance of conducting a proper investigation. Where an employee refuses to assist in a disciplinary investigation, it may aid in giving grounds to constitute lawful termination.

It is critical for employers to only require a medical examination where there are empowering statutory provisions, for example, in applicable work health and safety legislation. As has always been the case, employers should continue to seek legal advice before affecting termination.

For advice on this case or any matter relating to workplace investigations or OHS issues, please contact Lindsay Carroll in AMMA’s Brisbane office via (07) 3210 0313.