The Full Court of the Federal Court of Australia in Grant v BHP Coal Pty Ltd [2017] FCAFC 42 has found that the dismissal of an employee who refused to undergo a medical examination to confirm his capacity to return to his normal work duties was not harsh, unjust or unreasonable under the Fair Work Act 2009 (Cth).
The employee had been working as a boilermaker at a coal mine when he injured his right shoulder in the course of his work duties. After re-injuring his shoulder on a number of occasions, both during and outside work hours, the employee went on extended sick leave during which time he underwent surgery on the shoulder. While he was on sick leave, he and the employer had very little contact. After an absence from work of some 8 months, the employee sought to return to work relying on medical certificates from his general practitioner and treating orthopaedic surgeon that he was fit to return to normal duties. The mine supervisor, however, directed the employee to attend a medical appointment with a medical specialist chosen by the employer so as to understand any limitations with respect to his fitness for work and how his condition might impact on his ability to perform his work as a boilermaker at the mine. The employee made it clear that he was dissatisfied with this direction and did not attend two scheduled medical appointments with the specialist. He then refused to answer any questions at a workplace investigation interview intended to inquire into his failure to attend the medical appointments unless the questions were put in writing. The employee was provided with a notice requiring him to show cause why his employment should not be terminated for refusing to follow lawful and reasonable directions contrary to his obligations as an employee and, subsequently, his employment was terminated.
The employee applied to the Fair Work Commission (“FWC”) for remedies for unfair dismissal pursuant to s 394(1) of the Fair Work Act 2009. The application was unsuccessful, as was an appeal to the Full Bench of the FWC. Both the FWC at first instance and the Full Bench found that the directions to the employee to undergo the medical examination were authorised by the Coal Mining Safety and Health Act 1999 (Qld) (“CMSH Act”) and that, accordingly, there was a valid reason for the dismissal related to the employee’s capacity or conduct for the purposes of s 387(a) of the Fair Work Act 2009.
The employee then brought an application in the Federal Court of Australia seeking certiorari, mandamus and various declarations. The trial judge, however, found that the employee had failed to establish error, jurisdictional or otherwise, in the decisions of the FWC at first instance or of the Full Bench and dismissed the application. The employee then appealed to the Full Federal Court.
The Full Federal Court (Dowsett, Barker and Rangiah JJ) dismissed the appeal, agreeing that the CMSH Act provided authority for the employer to direct the employee to attend and undergo the medical examination. The Full Court noted that the objects of the CMSH Act included protecting the health and safety of persons at coal mines and requiring that the risk of injury or illness resulting from coal mining operations be at an acceptable level. The Full Court further noted that the CMSH Act contained provisions dealing with the safety and health obligations of persons at coal mines. In particular, the Full Court referred to the following provisions of the CMSH Act:
- s 38, which provided that, where there was no regulation or recognised standard which prescribed a way to discharge the person’s safety and health obligation in relation to a risk, the person could choose an appropriate way to discharge the person’s safety and health obligation in relation to the risk;
- s 39(1)(c), which required a “coal mine worker” (which included the employee and the mine supervisor), to take (in addition to certain specified obligations) any other reasonable and necessary course of action to ensure anyone was not exposed to an unacceptable level of risk; and
- s 39(2)(d), which created an obligation on a coal mine worker to comply with instructions given for safety and health of persons by, amongst others, a supervisor at the mine.
The Full Court said at [89] that, while ss 39(1)(c) and (2)(d) of the CMSH Act did not declare in express terms that a coal mine worker could be required to undergo a medical examination, the language, objects and the statutory scheme made it clear that the legislature intended that a coal mine worker could be required to undergo a medical examination if it was reasonable and necessary to ensure that anyone was not exposed to an unacceptable level of risk.
The Full Court further said at [90] that it was satisfied that there was a legislative intention underlying ss 39(1)(c) and (2)(d) of the CMSH Act to curtail the right to personal liberty to the extent that coal mine workers (and others described in those provisions) might be required to attend medical examinations if the circumstances set out in those provisions were met.
The Full Court considered that the circumstances set out in those provisions had been met. The mine supervisor had identified a risk arising from the employee’s return to work, namely, potential harm to the safety and health of the employee and others because of the employee’s injury and so had then become obliged under s 39(1)(c) to take any reasonable and necessary course of action to ensure that no-one was exposed to an unacceptable level of risk. There was no regulation or recognised standard which prescribed a way of achieving an acceptable level of risk in relation to this particular risk. Therefore, s 38 required the mine supervisor to choose an appropriate way to discharge his safety and health obligation in relation to the risk. The way he had chosen was to direct the employee to attend the specialist for medical examination (see [84]).
The employee had argued that he had not been obliged to answer the questions at the workplace investigation interview because he was protected by privilege against self-incrimination. The Full Court rejected this argument for a number of reasons (see [109]–[112]) including the following:
- In considering whether the privilege applied, the traditional test was whether the person claiming the privilege genuinely and reasonably apprehended a danger from being compelled to answer the question objected to. However, the employee had not raised the issue of the privilege before the FWC at first instance and so there had been no attempt to identify and make findings upon all the relevant factual circumstances. The Full Court was not able to determine the question of whether the privilege applied in such a vacuum of facts.
- In any event, the employee had not made the claim of privilege at the interview but had merely declined to answer questions unless they were put in writing.
