Employer’s right to direct an employee to attend its own medical practitioners – further support provided in Grant v BHP Coal Pty Ltd by the Federal Court

Introduction

In March 2014, the Fair Work Commission decided, in the circumstances of the case in question, that it was a reasonable direction by the employer to require its employee to attend at a specialist medical practitioner, appointed by the employer, before being allowed to return to work.  This decision has been challenged by the employee on a number of occasions since, the most recent decision being handed down by the Full Court of the Federal Court on 10 March 2017, upholding (in effect) the original decision.

Summary of facts

Mr Grant was a boilermaker and commenced employment with BHP Coal Pty Ltd (“the employer”) in 2003.  In 2011, during work, Mr Grant injured his shoulder.  In July 2012, he re-injured his shoulder outside of work hours, and went on extended sick leave for surgery.

Mr Grant’s general practitioner and orthopaedic surgeon said he would be able to return to work on 1 April 2013.  Mr Grant attended work on 2 April 2013 but was informed he must receive additional approval to return by “a BMA doctor” (that is, one approved/employed by the employer’s company – BMA and BHP are related entities).

Mr Grant was fully paid for the time he was waiting to see the employer’s doctor, for which an appointment was made on 17 April 2013.

Mr Grant objected to the requirement for a further medical examination.  When reminded of the medical appointment, Mr Grant requested a letter about why he had been stood down/suspended and said he had further questions about the medical appointment.  Mr Grant’s supervisor then threatened a failure to attend the medical appointment would constitute “failure to comply with a reasonable direction.”

Mr Grant phoned the doctor five minutes before his appointment to ask if he was required to bring anything.  The doctor said if there were x-rays, CTs or MRIs that were relevant, it “would be good” to have them, but not necessary.  Mr Grant then left a message on his supervisor’s phone saying he had not been told of these requirements and needed to reschedule the appointment.

There was evidence Mr Grant deliberately ignored information from his supervisor that he could still attend the appointment later that day, given in a phone message that included a threat of disciplinary action for failure to attend.

The failure to attend the appointment led to a meeting on 22 April 2013.  Mr Grant refused to answer questions during the interview.  Mr Grant was then invited to show cause as to why his employment should not be terminated.  In his response to the “show cause” notice, Mr Grant argued the direction to attend the medical appointment was unlawful and unreasonable. At a meeting on 6 May 2013, Mr Grant’s employment was terminated.

Case history

Mr Grant applied to the Fair Work Commission (“FWC”), arguing he had been unfairly dismissed from his employment.  The application was dismissed by the FWC and an appeal to the Full Bench of the Fair Work Commission was unsuccessful.  Mr Grant applied to the Federal Court for the original decision to be set aside but this application was dismissed.  He then appealed that decision to the Full Court of the Federal Court (“FCAFC”).

The FWC

The question before the FWC was whether the dismissal was, for the purposes of section 385(b) of the FW Act, harsh, unjust or unreasonable (ie. unfair).  The key findings were:

1. The directions to Mr Grant were lawful, being authorised by section 39(1)(c) of the Coal Mining Safety and Health Act 1999 (Qld) (“the CMSH Act”). This section requires coal mine workers take any “reasonable and necessary course of action to ensure anyone is not exposed to an unacceptable level of risk”.
2. The directions were reasonable.   After a lengthy (8 months) period of absence with little contact, and taking into account the inherent dangers of the worksite, it was reasonable for the employer to confirm Mr Grant’s capacity to perform duties.  It was also reasonable that the employer required a specialist occupational physician with knowledge of mining to conduct that assessment.
3. Mr Grant had been deliberately misleading (regarding the x-ray requirements) and he had no legitimate reason for non-attendance at the appointments nor non-participation in the meetings.
4. Mr Grant had unreasonably refused to cooperate and participate in the investigation process.  The Commissioner also considered that Mr Grant’s desire to record conversations showed the trust of the employment relationship was undermined, and a claim for damages submitted to WorkCover Queensland indicated that he suffered permanent impairment and was not actually fit to return to work.

In light of the Commissioner’s findings on the issues indicated above, it was found that the termination was not harsh, unjust or unreasonable and the unfair dismissal application failed.

FCAFC

After the Full Bench of the FWC dismissed his appeal, Mr Grant applied to the Federal Court to have the decision set aside and, after this was unsuccessful, appealed that decision to the FCAFC. The primary judge found that Mr Grant had failed to establish error, jurisdictional or otherwise, in the decisions of the FWC at first instance or on appeal.  The FCAFC found no error in the primary judge’s decision and dismissed the appeal.

The FCAFC observed that if there were no power to require employees to attend medical assessments, the result would be at odds with the first two objects of the CMSH Act, which were:

1. protecting the health and safety of persons at coal mines; and
2. requiring that the risk of injury or illness to any person resulting from coal mining operations be at an acceptable level

and inconsistent with provisions such as sections 30, 31, 33 and 34, which are aimed at eliminating unacceptable risk.  The example given was if an employee was apparently having psychotic episodes, the employer must have the ability to compel them to attend a psychiatric assessment to protect other employees from unacceptable risk.

Additionally, whilst there is a right to personal liberty encompassing freedom from requirement to undergo medical examinations, this right is limited, and cannot extend to interfere with clearly identified legislative objectives.

The privilege against self-incrimination did not apply to excuse Mr Grant’s non-participation at the meeting. The FCAFC was not required to consider this, as it was not an argument at first instance, although it did comment that a workplace investigation interview intended to inquire as to an employee’s conduct did not attract privilege against self-incrimination. This privilege only arises where answering places the witness in real and appreciable danger of conviction.  This does not mean the privilege can never arise in the sphere of employment.  It might have arisen, but the test traditionally applied is whether the person claiming the privilege genuinely and reasonably apprehends a danger from being compelled to answer the question objected to.  Mr Grant’s evidence suggested he did not apprehend this danger.

Conclusion

The repeated affirmation of the FWC’s original decision provides further support to the ability of an employer, in some circumstances, to require an employee to attend a medical assessment of the employer’s choice.  Although the focus in the Grant v BHP Coal cases was on the Coal Mining Safety and Health Act 1999 (Qld), the principles are likely to apply equally to employment covered by other occupational health and safety legislation – for example, in WA, the Occupational Safety and Health Act 1984 (WA) or the Mines Safety and Inspection Act 1994 (WA).

Of course, this does not give an employer a carte blanche right to require an employee to attend a medical appointment with any practitioner, at any time and under any circumstances.  The appointment must still be reasonable for the purposes of protecting health and safety of the employee or others.

It should also be noted that these issues can be minimised or avoided by expressly including a clause in the employment contract allowing the employer to direct the employee to attend medical appointments in certain circumstances.

If you require any assistance with any matters relating to employment obligations, please don’t hesitate to get in contact.