Dr Who? Australia's FWC Says the Company Can Decide

by K&L Gates LLP
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Introduction

A recent decision by the Full Bench of Australia's Fair Work Commission (Commission) has held that an employer has the right to:

  • direct an employee to attend a company doctor for an assessment to verify his or her fitness for work 
  • discipline the employee (up to and including termination of employment) if he or she refuses a lawful and reasonable direction to attend the assessment.

The Facts

Mr. Grant was a boilermaker at BHP Coal's Peak Downs Mine (Company). Mr. Grant first injured his shoulder in October 2011. He then suffered further injuries to his shoulder, both at home and at work, took extended sick leave for eight months from July 2012 and had shoulder surgery in September 2012. Mr. Grant sought to return to work in March 2013 and advised his supervisor, Mr. Gustafson, that he was fit to return. He provided two medical certificates, one from his general practitioner (GP) and one from his surgeon. Both certificates were general in nature, stating that Mr. Grant was "fit to return to full normal duties".

Mr. Gustafson was not satisfied with the general nature of the certificates and directed Mr. Grant to attend an appointment with a specialist occupational physician, chosen by the Company and with specific knowledge of the Company's operations, to assess his fitness for work. Mr. Grant refused to do this and questioned the authority on which the direction was given. Mr. Gustafson relied on Queensland mining regulations which permitted the Company to take reasonable steps to ensure that an employee was not exposed to an unacceptable level of risk in the workplace.

Mr. Grant refused to attend the appointment and then again refused to attend the appointment when it was rescheduled. Following an investigation into the employee's refusal, the Company dismissed the employee.

First Instance Decision

Commissioner Spencer held that the direction given to Mr. Grant to attend the medical assessment with a company appointed doctor was lawful and reasonable on the grounds that:

  • under the health and safety obligations on coal mine workers under the Coal Mining Safety and Health Act 1999 (Qld), Mr. Grant's manager was obliged to take action to ensure the health and safety of the workers with whom Mr. Grant worked at the mine, as well as Mr. Grant himself. Accordingly, the direction by the Company that Mr. Grant attend a fitness for work assessment was lawful in those circumstances 
  • the medical information provided by Mr. Grant was "quite insufficient and generic". It was reasonable for the Company to require more specific medical information, and for it to require a fitness for work assessment to be conducted by a physician with specialised knowledge of its operations.

Accordingly, Mr. Grant's refusal to attend the fitness for work assessment, despite being warned that he would face disciplinary action if he failed to comply with the direction to attend, constituted a valid reason for dismissal.

Decision on Appeal

On appeal, the Full Bench of the Commission (Full Bench) affirmed the Commission's decision. The Full Bench agreed that the coal mining legislation gave the Company the right to direct Mr. Grant to attend a medical assessment with its chosen doctor.

More importantly, the Full Bench made some observations on the general common law rights of employers to give lawful and reasonable directions. The Full Bench 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".

The Full Bench went on to say that at common law, a direction will be lawful if it: 

  • relates to the subject matter of the employment 
  • involves no illegality 
  • is reasonable having regard to the nature of the employment and the employment instruments which apply to it.

So long as an employer's direction meets these criteria, the employee must obey it, unless by doing so he would be exposed to a substantial danger outside the contemplation of the employment contract.

In this case, the direction to attend the medical assessment was both lawful and reasonable, having regard to Mr. Grant's lengthy absence from work following surgery, the generalised nature of the medical certificates, and his role in doing heavy manual tasks.

Significance for Employers

The management of long term ill and injured workers can be a difficult challenge for employers. This Full Bench decision supports the view that employers are entitled to seek further clarification where medical clearances provided by employees are general in nature, or where there are genuine concerns that there is a risk to health and safety if the employee returns to work.

It also confirms an employer's right to issue lawful and reasonable directions to employees includes the right to direct them to attend a fitness assessment with a company doctor. If the employee objects to this direction, and no reasonable explanation is given for this, then the employer is entitled to take disciplinary steps for this refusal to comply, up to and including termination of employment. Employers should warn employees that disciplinary action may be taken if the employee refuses to comply with the direction.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© K&L Gates LLP | Attorney Advertising

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