Posted 2 years ago
The recent Full Federal Court decision in Grant v BHP Coal arguably sets a new precedent by providing greater flexibility for Queensland coal miners to direct employees to attend medical examinations, where there is a reasonable need to do so.
BHP Coal did not achieve this outcome speedily or without significant cost. The original decision to dismiss the employee for refusing to attend a medical examination was made in 2013 and has been reviewed by four tribunals / courts over a four year period. This Full Federal Court decision is likely to be appealed to the High Court by the employee. However, given the consistent outcomes to date, he would appear unlikely to succeed.
Generally in Australia, employees are contractually required (as an implied term of their contract) to comply with a lawful and reasonable direction given by their employer, including a direction to attend a medical examination.
In Queensland however, coal miners have been limited in their ability to lawfully direct employees regarding medical examinations. This was particularly so if they did not have a fit for work policy in place (a physical and psychological impairment (PPI) policy) which was consented to by a majority of the workforce and included the ability to direct an employee to attend a medical examination.
To understand the previous limitation for Queensland coal miners, I have explained briefly below the relevant 2005 Queensland Supreme Court decision (Edwards v North Goonyella Coal Mines).
In that case, an employee (Edwards) had attended a periodic medical examination (required to be undertaken by coal mine workers every 5 years). The doctor (Nominated Medical Adviser (NMA)) reported that the employee required further tests before the doctor could determine the employee's fitness for work.
As a result, North Goonyella instructed the employee not to attend at work and to undergo the tests. The employee refused to undergo the tests and North Goonyella refused his attendance at work.
The Supreme Court considered whether North Goonyella could compel the employee to attend the medical examination - either under the Queensland coal mining safety and health regulations (CMSH Regulation) or at common law, as an implied term of the employee’s contract.
The Supreme Court determined that the CMSH Regulation allowed North Goonyella to direct an employee to attend a medical examination, but only if an authorised fit for work / PPI policy was in place - North Goonyella did not have a fit for work / PPI policy in place.
The Supreme Court then went on to find that the comprehensive statutory regime (prescribed under the CMSH Regulation), overrode any implied contractual term that North Goonyella might have relied on as a basis for the direction to attend a medical examination. That is, North Goonyella did not have the power to direct an employee to attend a medical examination.
Fast forward to the 2017 Full Federal Court decision:
A boilermaker employee at one of BHP Coal’s mines - Peak Downs - sustained a non-work related injury which resulted in him requiring surgery. He was off work for a period of approximately 8 months. In early 2013, he provided Peak Downs with a medical certificate from his GP and his orthopedic surgeon stating that he was fit to return to work.
The boilermaker then attended at work, at which time he was directed by Peak Downs to attend a company doctor so that it could 'understand any limitations with respect to his return to work and how his condition impacted on his ability to perform his role as a boilermaker'. Peak Downs did not have a fit for work / PPI policy in place, and relied on broad safety obligations set out in the Queensland Coal Mining Safety and Health Act as the lawful basis for the direction.
The employee disputed the need for him to attend an examination with Peak Down’s doctor. He did not attend scheduled appointments. During a company investigation as to why the employee had failed to attend the medical examination, the boilermaker refused to answer questions put to him by Peak Downs (unless they were put in writing). As a result of the refusal to attend the medical examination and refusal to answer questions put to him, following due process, Peak Downs dismissed the employee.
The employee made an unfair dismissal application to the Fair Work Commission on the basis that the direction to attend a medical examination was unlawful and unreasonable. That is, relying on the 2005 Supreme Court decision.
The Fair Work Commission determined that the dismissal was fair on the basis that the overarching Queensland coal mining safety and health legislation gave Peak Downs the lawful authority to direct the employee to attend the medical appointments.
The Fair Work Commission also determined that the direction was reasonable because the employee:
- had undergone surgery
- had been absent from the workplace for a significant period of time (8 months)
- was not in regular contact with Peak Downs during his absence
- would be returning to work, to perform potentially hazardous work in an inherently hazardous workplace
- had provided fit for work certificates from medical practitioners who were not specialised in assessing coal mining industry employees.