In Brief

What would you do? One of your employees suffers a serious physical injury. They require surgery and on-going rehabilitation. After 8 months off work, the employee contacts you and says their doctor has cleared them to return to work. They hand you medical certificates from their GP and surgeon stating they are ‘fit for full duties’. You are worried that the GP and surgeon don’t appreciate the actual demands of the employee’s role – and that if you let the employee return to work, they may re-injure themselves. Can you question the employee’s medical clearances? Can you direct them to see a company doctor, who is familiar with the role, to get a second opinion on whether they are fit for work?

In Grant v BHP Coal Pty Ltd,¹ a Full Bench of the Fair Work Commission has provided employers clear guidance on what they can do in precisely this situation.

The decision confirms that, in certain circumstances, an employer has the right to:

• question the adequacy of an employee’s medical certificates – and direct them to attend a further assessment with a company doctor to verify their fitness for work, and
• discipline the employee if they refuse a lawful and reasonable direction to attend an assessment with the company doctor.

Facts

Mr Grant was a boilermaker at BHP Coal’s (BHPC) Peak Downs mine. His role involved heavy manual labour. He suffered a shoulder injury at work, took 8 months of extended sick leave and underwent surgery in September 2012. In March 2013, he advised his supervisor, Mr Gustafson, that he was fit to return to work. He provided 2 medical certificates, one from his GP and one from his surgeon. Both certificates were general – simply stating that Mr Grant was ‘fit to return to full duties’. They did not disclose the nature of his injury or the rehabilitation measures undertaken.

Mr Gustafson was not satisfied, based on the generalised medical certificates, that Mr Grant could safely return to work. After consulting with HR, Mr Gustafson directed Mr Grant to attend a fit for work assessment with a specialist occupational physician, chosen by the company, who had experience in the mining industry and knew the demands of the roles at the Peak Downs mine. Mr Grant was not required to attend work and continued to receive full pay while the assessment process was carried out.

Mr Grant questioned the authority on which Mr Gustafson gave this direction. Mr Gustafson relied on relevant Queensland mining regulations which permitted the company to take any action necessary to ensure an employee is not exposed to an unacceptable level of risk to their safety. Mr Grant disputed this and refused to attend the assessment with the company doctor. Mr Gustafson directed Mr Grant on 4 occasions to attend this assessment and warned him that he could face disciplinary action if he failed to attend.

Mr Grant ultimately failed to attend the original assessment and a rescheduled assessment. He was suspended on full pay and directed to attend a disciplinary meeting – at which he refused to answer any questions.

BHPC subsequently terminated Mr Grant’s employment, principally on the basis that he had failed to attend the original and rescheduled medical assessments and had refused to answer questions and acted disrespectfully during the meeting. Mr Grant disputed the termination.

Decision

The Full Bench considered the employer’s right to make directions under the relevant coal mining regulations and found that the regulations did grant BHPC specific power to direct Mr Grant to attend a medical assessment in these circumstances.

However, for present purposes, it is more useful to consider the Full Bench’s observations on the general common law right of an employer to issue a lawful and reasonable direction to an employee (in this case, to attend a medical assessment).

The Full Bench reviewed the existing case law on this issue and confirmed that a ‘direction given to an employee is lawful to the extent that it falls reasonably within the scope of service of the employee’.²

At common law, an employer’s direction will be ‘lawful’ if it:

• relates to the subject matter of the employment, and
• is not illegal, and
• is reasonable – which is determined on the facts, considering the nature of the employment and the common practices and instruments which apply.

If an employer’s direction meets these criteria, then an employee is required to comply with it – unless doing so would expose them to risk of substantial danger outside the contemplation of the employment contract.

The Full Bench agreed with Commissioner Spencer’s finding at first instance that the employer held reasonable concerns about whether Mr Grant was medically fit to return to his pre-injury duties and that there was nothing in any of the mining regulations which prevented BHPC from lawfully directing him to attend a medical assessment to determine his fitness for work.

The Full Bench agreed that the evidence showed that Mr Grant had wilfully decided not to attend the appointments which he had been directed to attend with the company doctor – and that he did so after being warned that he faced disciplinary action if he refused to attend. Accordingly, the Full Bench found that not only did BHPC have a right in these circumstances to direct Mr Grant to attend the medical assessments with the company doctor, but that BHPC also had a valid reason to terminate Mr Grant’s employment, when he failed to comply with this lawful and reasonable direction.

Lessons And Tips For Employers

Managing ill, injured and chronically absent employees is a challenge for employers and often requires a significant investment of time and resources. A robust approach is typically required to ensure that the risks are managed and these types of cases are progressed fairly and efficiently.

In certain circumstances, you can question the adequacy of an employee’s medical clearances – if you have genuine concerns that allowing them to return to work may pose a risk to their health and safety.³ This may particularly be the case if you hold reasonable concerns that the medical clearances are provided by practitioners who may not fully appreciate the demands/risks of the employee’s role.

Your right to issue lawful and reasonable directions to your employees extends to a right to direct them to attend a fit-for-work assessment with a company doctor.

When issuing a lawful and reasonable direction to an employee to attend a medical assessment, you should warn them that they may face disciplinary action if they fail to comply with this direction.

Where an employee fails to comply with a lawful and reasonable direction to attend an assessment with a company doctor, you need to assess the reasons for their refusal and give them an opportunity to explain this. If they fail to provide a reasonable explanation for their refusal, you can take disciplinary action against them for their conduct – up to and including termination.

End Notes:

1. (C2014/3771), 18 June 2014, SDP Richards, DP Asbury and Booth C.
2. at [110].
3. See also AIPA v Qantas Airways Ltd [2014] FCA 32 where the Federal Court found that Qantas had an implied contractual right to require an employee to provide more detailed medical information (to supplement a series of vague ‘one line’ medical certificates, which stated simply that the employee had a ‘medical condition’ and was ‘unfit for normal work’). The Court noted that in requesting this additional medical information, Qantas was acting reasonably and that it required the information, among other reasons, in order to satisfy its obligations under airline safety regulatory requirements, workplace health and safety laws and to make the employment contract operationally effective.

For further information, please contact:

Paul  Burns, Partner, Herbert Smith Freehills
[email protected]
 

Kirsty  Faichen, Partner, Herbert Smith Freehills
[email protected]

Drew  Pearson, Partner, Herbert Smith Freehills
[email protected]
 

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