10 May, 2017
The Full Federal Court has handed down a decision on an employer’s right to direct attendance at a medical appointment, and whether an employer can validly dismiss an employee for failing to follow such a direction. The Full Court’s decision is positive for employers covered by the Coal Mining Safety and Health Act 1999 (Qld), but may also be relevant for employees in non-coal mining industries.
The full decision is here, and we set out below a brief summary of the key points.
The Full Court’s decision confirms that the Coal Mining Safety and Health Act 1999 (Qld) (CMSH Act) authorises an employer to direct employees to attend medical examinations outside of the circumstances prescribed by the Regulations – where reasonable and necessary – to ensure no-one is exposed to an unacceptable level of risk. Consequently, the Full Court’s decision confirms the FWC’s decision that an employer will have a valid reason to dismiss an employee who fails to comply with such a direction made under the CMSH Act.
As the Full Court accepted that legislation can authorise an employer to direct an employee to attend a medical appointment, this decision could also support employers in non-coal mining industries to direct employees to see a doctor where the applicable safety legislation authorises that direction (which will depend on the terms of the relevant legislation). The Full Court determined that it was unnecessary, in deciding the appeal, to consider whether an implied term of an employment contract could authorise the direction and consequently has left this question open.
Practical considerations
Further detail of the decision is below, however if an employer is contemplating disciplinary action for failure to follow a direction to attend a medical examination, it should consider the following:
- On what basis if the direction being issued? (e.g. applicable safety legislation, contract of employment or applicable industrial instrument)
- Is the doctor to whom the employee is being directed a specialist, and does he or she have industry knowledge or an understanding of the relevant operations?
- If the employee has refused to attend or an appointment was not attended, has the employer considered if there is a genuine (valid) reason given for the refusal/non-attendance?
- If self-incrimination privilege is claimed by an employee in respect of questions asked of them, is the employer's HR or management team aware of how to respond?
Background to the Decision
The case concerned Mr Grant, a boilermaker employed by BHP Coal at Peak Downs Mine. He went on extended sick leave from July 2012 due to a shoulder injury. When Mr Grant sought to return to work (after more than 8 months’ sick leave, during which time there was very little contact between the parties), BHP Coal directed him to attend appointments with a specialist doctor. Mr Grant was dismissed for failing to follow BHP Coal’s direction to attend two appointments, and for refusing to answer questions in a disciplinary meeting about the matter.
Mr Grant’s unfair dismissal application to the FWC was dismissed by both Commissioner Spencer and the Full Bench. The Federal Court at first instance declined to overturn the FWC’s decisions. Mr Grant’s appeal to the Full Federal Court was his fourth attempt to challenge his dismissal.
The appeal primarily concerned the interpretation of s 39(1)(c) of the CMSH Act and the related statutory scheme. Section 39(1)(c) obliges a “coal mine worker” to take any other reasonable and necessary course of action to ensure anyone is not exposed to an unacceptable level of risk. However, the broader issues arising from the litigation (including the FWC decisions) are also important. In short, those issues were:
- whether BHP Coal’s directions that he attend the medical appointments were lawful (i.e. authorised by statute or the employment contract);
- whether those directions were reasonable;
- whether Mr Grant failed to comply with the directions;
- whether Mr Grant unreasonably refused to cooperate and participate in the investigation process; and
- whether the dismissal was harsh, unjust or unreasonable.
FWC decisions and Federal Court at first instance
Commissioner Spencer found that Mr Grant’s supervisor’s directions were authorised by s 39(1)(c) of the CMSH Act and that it was reasonable for BHP Coal to seek to confirm Mr Grant’s capacity, noting his lengthy absence, the relative lack of contact between the parties, the fact that his work was potentially dangerous, and the lack of any preparation for his return to work. As Mr Grant did not have any legitimate reason for failing to attend the two appointments, there was a valid reason for the appellant’s dismissal. As BHP Coal did not rely on the employment contract as authorising it to direct Mr Grant to attend the medical examinations, the Commissioner did not decide on this point. However, she observed that the CMSH Act does not exhaustively deal with such directions nor does it limit when an employer may otherwise lawfully direct an employee to attend a medical examination.
Commissioner Spencer also considered Mr Grant’s refusal to answer questions in a disciplinary meeting (about his failure to attend the appointments) unless questions were put in writing was unreasonable and improper, and was another valid reason for dismissal. Commissioner Spencer considered it was reasonable for BHP Coal to choose the particular doctor as that doctor was an occupational physician with knowledge of the mining industry and BHP Coal’s operation, whereas Mr Grant’s doctors were not so specialised.
The Full Bench of the FWC essentially upheld Commissioner Spencer’s decision, finding that s 39 of the CMSH Act was not restricted to conduct within the geographical confines of a coal mine. Referring to Dixon J’s judgment in R v The Darling Island Stevedoring and Lighterage Company Limited; Ex parte Halliday and Sullivan [1938] HCA 44, the Full Bench also held that BHP Coal’s direction for Mr Grant to attend the medical appointments was authorised by the contract of employment.
In the Federal Court at first instance, Collier J dismissed Mr Grant’s application to quash the FWC’s decisions, rejecting his claims that the Full Bench of the FWC failed to properly deal with his arguments on appeal. Collier J noted that a contractual right can be given to an employer to direct or order an employee to attend a medical examination (referring to Fernando v Commissioner of Police (1995) 36 NSWLR 567). However, her Honour found that there was no express or implied contractual right in Mr Grant’s contract, citing Edwards v North Goonyella Coal Mines Pty Ltd [2005] QSC 242 (which is another case considering the terms of the CMSH Act).
Full Court’s decision
On appeal to the Full Federal Court, Mr Grant argued that:
- the FWC had misconstrued s 39(1)(c) of the CMSH Act, in that it provided no authority for BHP Coal to direct Mr Grant to attend the appointments; and
- Mr Grant had a fundamental right to refuse to undergo a medical examination, and the language s 39(1)(c) was not clear and unambiguous enough to abrogate that right.
The Full Court observed that the CMSH Regulations provide for employers to ensure that pre-employment and periodic health assessments are carried out, but were silent in respect of health assessments outside those prescribed circumstances. After considering the statutory scheme in detail, the Full Court concluded that the legislature intended that a coal mine worker can be required to undergo a medical examination if it is reasonable and necessary to ensure no-one is exposed to an unacceptable level of risk. In addition, the Full Court was satisfied that the legislature intended that ss 39(1)(c) and (2)(d) of the CMSH Act would curtail the right to personal liberty to the extent that coal mine workers (among others) may be required to attend medical examinations in accordance with the CMSH Act.
Mr Grant also argued that he was entitled to rely on self-incrimination privilege in not answering the questions during the disciplinary meeting. While not needing to deal with the issue, the Full Court observed that privilege against self-incrimination was at least capable of applying to questions asked of Mr Grant in the workplace interview but noted that Mr Grant had not asserted this privilege at the meeting, so could not rely on it after the dismissal.
Implied contractual term authorising a direction
BHP Coal filed a notice of contention before the Full Court asserting that Collier J erred in finding there was no implied contractual right to direct Mr Grant to attend the medical examinations. The Full Court found in unnecessary to deal with this argument, but noted that it raised “potentially 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”.
The Full Court left open the question as to whether there could be an implied contractual term authorising an employer’s direction for an employee to attend a medical examination. However, the FWC’s and Collier J’s comments on this issue suggest that the answer will depend on whether the applicable statutory regime deals comprehensively with directions to attend medical examinations such that a contractual term cannot arise by necessary implication. In respect of the CMSH Act, the FWC Full Bench held that such a term could be implied, whereas Collier J appeared to accept that the CMSH Act was so exhaustive that a term could not be implied. As for other statutory regimes, it will depend on the particular terms of the legislation.
Link to full text of case: http://www.austlii.edu.au/cgi-bin/sign.cgi/au/cases/cth/FCAFC/2017/42
For further information, please contact:
Miles Bastick, Partner, Herbert Smith Freehills
miles.bastick@hsf.com
