31 Mar FULL FEDERAL COURT RULES EMPLOYER COULD DIRECT EMPLOYEE TO ATTEND MEDICAL APPOINTMENT

The Full Bench of the Federal Court in Grant v BHP Coal Pty Ltd [2017] FCAFC 42, has upheld an employer’s decision to dismiss an employee who refused to attend a medical appointment to assess his fitness for work.

Background – The Facts

The employee was a boilermaker, employed by BHP Coal Pty Ltd, who injured his right shoulder at work in October 2011 and took extended sick leave in July 2012 to undergo surgery.  The employee’s general practitioner advised that he was “fit to return to his normal duties” from 1 April 2013.  However, his employer, BHP Coal, told him he would need to see a “BMA doctor” before he could return to work.

The employee was directed to attend a medical appointment on 17 April 2013.  However, the employee refused to do so, despite being warned by BHP Coal that his failure to attend would be considered a failure to comply with reasonable directions and that he would be subjected to disciplinary action.

An investigation into his refusal to attend the appointment followed, eventually leading to his termination for failure to follow lawful and reasonable directions contrary to his obligations as an employee.

The Decisions of the Fair Work Commission and the Federal Court

The employee commenced proceedings in the Fair Work Commission (the “FWC”) alleging that he had been unfairly dismissed.  The employee’s claim was rejected, with Commissioner Spencer finding that s39(1)(c) of the Coal Mining Safety and Health Act 1999 (Qld) (the “CMSH Act”), which requires a coal mine worker to take any “reasonable and necessary course of action to ensure anyone is not exposed to an unacceptable level of risk”, authorised BHP Coal to direct the employee to attend the medical appointment to confirm his capacity to return to work.

Before the Full Bench of the FWC, the employee argued Commissioner Spencer erred in her findings. The employee’s arguments were again rejected, with the Full Bench agreeing that BHP Coal was authorised to direct the employee to attend the appointment under s39(1)(c) of the CMSH Act. The Full Bench went even further to say that:

1.  there was an obligation imposed on the employee under s39(2)(d) of the CMSH Act to comply with instructions given for health and safety by a supervisor; and

2.  that BHP Coal had the power under the contract of employment to require the employee to attend the medical appointment, saying that BHP Coal was able to direct the employee “to do such things that are not unlawful, and which are reasonable and properly an incident of the employment relationship, or fall within the scope of the contract for service”.

Despite two rejections, the employee appealed to the Federal Court arguing that Commissioner Spencer and the Full Bench of the Fair Work Commission had made a number of jurisdictional errors in their decisions. Justice Collier was satisfied that there was no error on the part of Commissioner Spencer or the Full Bench of the FWC and that s39(1)(c) of the CMSH Act did permit BHP Coal to direct the employee to attend the medical appointment.

In the latest appeal by the employee to the Full Bench of the Federal Court, the Full Bench agreed with Justice Collier that Commissioner Spencer and the Full Bench of the FWC made no error in their findings and accordingly, their decisions were upheld.  Some interesting comments made by the Full Bench included that:

1.  the employee’s supervisor identified a risk arising from the employee’s return to work;

2.  this risk was potentially harmful to the employee’s health and safety and the health and safety of others; and

3.  the supervisor was obliged under s39(1)(c) of the CMSH Act to take any “reasonable and necessary course of action to ensure that no one was exposed to an unacceptable level of risk”.

What does this mean for Employers?

Work Health and Safety

Although this case dealt with specific provisions of the CMSH Act (which are relevant to workers in the coal mining industry), it is significant to note that the model Work Health and Safety legislation, which applies to most workers in all Australian states and territories (except Victoria and Western Australia where earlier occupational health and safety laws still apply), contains similar provisions to s39(1)(c) of the CMSH Act.

Specifically, s19 of the model legislation provides that a person conducting a business or undertaking must ensure the health and safety of their workers and other persons; and s28 of the model legislation states that a worker “must comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act”.

This suggests that the reasoning in this case may similarly be applied to cases where a person conducting a business or undertaking gives a direction to a worker to cease work pending a medical assessment because of a reasonable danger to their health and safety or the health and safety of others and the employee’s refusal to comply with that direction leads to their dismissal and subsequently an unfair dismissal claim against their employer.

Implied Contractual Rights

Despite the Full Bench of the Fair Work Commission finding that BHP Coal had an implied contractual right to require the employee to attend the medical appointment, Justice Collier decided that it was unnecessary to imply such a term under contract in light of BHP Coal’s statutory rights to do so under the CMSH Act.

Although BHP Coal tried to argue that Justice Collier erred on this point, the Full Bench of the Federal Court said BHP Coal’s submission raised “complex issues concerning the legality of a requirement by an employer that an employee undergo a medical examination against his or her will in the absence of legislative authority to do so”, which they determined they did not need to consider as a statutory right existed.

To avoid any doubt about whether future Courts will or will not imply such a term into an employment contract, it is important for employers drafting employment contracts to ensure that an express provision is included in their employment contracts (i.e. the employment contract should include a right for the employer to direct an employee to undergo a medical assessment in certain circumstances).  An express provision will negate the requirement for the Courts to consider whether such a clause should be implied.

Unsure about your rights to direct an employee to undergo a medical assessment?  Contact the team at HR Law for advice.