01 May 2014

Fit, but not fit enough

by Michael Byrnes

Even if the terms of the contract or enterprise agreement stipulate a particular standard of health and safety, the overarching statutory framework may justify additional requirements for employees.

The management of work-related injuries is often a delicate exercise. There can be a multitude of issues to be addressed – workers compensation, the risk of an unfair dismissal claim, adverse action and obligations under work health and safety laws – sometimes creating potentially conflicting obligations that need to be reconciled. One issue that has arisen in recent cases is the extent to which an employee's rights and obligations under contract or an applicable enterprise agreement should be read so as to conform to the employer's duty to provide a safe workplace.

In Grant v BHP Coal Pty Ltd [2014] FWC 1712 an employee made a claim for unfair dismissal, alleging that the employer should not have terminated his employment, notwithstanding the employee had failed to comply with a number of directions to attend a medical assessment.

Commissioner Spencer's decision recognises that for the purpose of unfair dismissal proceedings, the reasonableness of an employer's decision to terminate will not be assessed solely in light of the contract of employment or applicable enterprise agreement: an employer's work health and safety obligations will justify lawful and reasonable directions that further the objectives of work health and safety.

Facts

Darrin Grant was employed as a boilermaker at BHP Coal Pty Ltd's (the Respondent) Peak Downs Mine.

On 21 October 2011, Mr Grant injured his shoulder while undertaking duties at the mine. He subsequently re-injured his shoulder on a number of occasions which meant that he was on extended sick leave for a period of almost 2 years.

On 27 March 2013, Mr Grant provided a medical certificate to the effect that he was fit to return to his pre-injury duties. This certificate set in motion a train of events which ultimately resulted in Mr Grant's dismissal.

On 2 April 2013, Mr Grant attended work but was told that before undertaking any work he needed to undergo a medical assessment with occupational therapists engaged by the Respondent. After consulting the occupational therapists, Mr Gant was told that he would need to undergo a medical assessment by the Respondent's preferred specialist. That specialist was, at that particular time, unavailable. Consequently, Mr Grant was told to go home with pay.[1]

In the following week or so, Mr Grant and his supervisor, Mr Gustafson, engaged in a number of discussions regarding the basis for Mr Gustafson requiring Mr Grant to undergo a medical assessment. On the one hand, Mr Gustafson referred to the Respondent's obligations under the Coal Mining Safety and Health Act 1999 (Qld); on the other hand, Mr Grant referred to the terms of the enterprise agreement which applied to him. That agreement only required medical clearance from the employee's doctor, which Mr Grant had provided.<[2]

On 17 April 2013, Mr Grant received a telephone call instructing him to attend a medical examination with the Respondent's specialist. Mr Grant was advised that a failure to attend would be considered a failure to comply with a reasonable direction.[3]

Five minutes before his scheduled appointment, Mr Grant telephoned the specialist and inquired if he needed to bring anything along to the assessment. The specialist, Dr McCartney, advised that if Mr Grant could readily provide the results of any examinations that he had previously undergone with other specialists, that would be helpful. In light of this conversation, Mr Grant took the view that as the Respondent had not informed him that the results were required, he would not attend his meeting with Dr McCartney.[4]

Mr Gustafson then sent Mr Grant a text message directing him to a medical appointment with Dr McCartney at a rescheduled time and assuring Mr Grant that no medical examination or related documents needed to be provided. Mr Grant failed to attend, claiming that he did not receive the Respondent's message.

On 18 April 2013, Mr Gustafson left a message with Mr Grant informing him that he was suspended on full pay while an investigation into his refusal to follow directions.

During the subsequent investigation, Mr Grant refused to answer questions on the grounds that any questions needed to be put to him on writing.

On 5 May 2013, Mr Grant received a "show cause" letter which stated that his failure to attend the appointments with Dr McCartney amounted to a failure to follow lawful and reasonable directions and had resulted in loss of trust and confidence.[5]

Mr Grant responded stating that the directions were unlawful and unreasonable.

On 5 May 2013, Mr Grant's employment was terminated.

Consideration

Mr Grant made an application for unfair dismissal remedy under Part 2-4 of the Fair Work Act 2009 (Cth) (FW Act).

An unfair dismissal occurs where the dismissal was harsh, unjust or unreasonable. In making that determination, s 387 of the FW Act requires consideration of a number of factors.

The key issue was whether there was valid reason for termination.

There is an implied term in all employment contracts that an employee must comply with lawful and reasonable directions.[6] Failure to do so can present a valid reason for termination.

Although Mr Grant conceded that he had not attended the appointments with Dr McCartney, he argued that the Respondent's directions were neither lawful nor reasonable.

The BMA Enterprise Agreement 2012 which applied to Mr Grant's employment only required a medical clearance from the employee’s doctor prior to returning to work. On the evidence, Mr Grant had complied with this provision. As noted above, he provided a medical certificate on 27 March 2013, prior to attending work on 2 April.

However, Commissioner Spencer ultimately ruled that the directions given to Mr Grant were both lawful and reasonable.

The Respondent had express statutory obligations under the Coal Mining Safety and Health Act 1999 (Qld) with respect to ensuring health and safety. It operated a business which entailed physically demanding work for employees. There was a real risk of injury if employees were not fit to perform their duties.[7]

Moreover, the course taken by the Respondent was reasonable and fair. Mr Grant had suffered a serious shoulder injury and had been away from work for almost two years. The certificate that he provided was lacking in detail; it did not identify the steps that had been taken by Mr Grant to ensure that he was in a state of recovery and fit for his particular duties as a boilermaker. In the circumstances, the Respondent could not be satisfied that Mr Grant was indeed fit for work and it was reasonable for it to direct that he undergo a medical assessment.

Having regard to these considerations, Mr Grant's termination was not unfair.

Implications

The interaction between the employment contract and statutory work health and safety obligations has been a recurring theme in case law. Commissioner Spencer's decisions fits within a broader pattern of decisions where courts have found that overarching work health and safety duties under statute may permit directions or requirements to employees that go beyond what is contemplated under the applicable contract or enterprise agreement.

For instance, in Australian and International Pilots' Association v Qantas Airways Limited [2014] FCA 32 Qantas directed an employee to provide a medical report outlining the employee's "diagnosis, prognosis, capacity to return to … pre-injury duties and the anticipated time frame [for unfitness]". The employee objected on the basis that there was no lawful basis for the direction; the enterprise agreement that applied only required provision of a "medical certificate or other evidence". Rares J ruled that Qantas had an implied right to request a medical report, a right which arose having regard to its work, health and safety obligations under the Work Health and Safety Act 2011 (Cth).

Arguably decisions such as Australian and International Pilots' Association v Qantas Airways Limited [2014] FCA 32 and Grant v BHP Coal Pty Ltd [2014] FWC 1712, provide a basis upon which employers can make requests or issue directions that go above and beyond the express terms of the contract or any applicable enterprise agreement. Even if the terms of the contract or enterprise agreement stipulate a particular standard of health and safety, the overarching statutory framework may justify additional requirements for employees. Of course, reliance on such a principle is less than ideal; such situations should, to the greatest extent possible, be addressed by the applicable contract or enterprise agreement, in clear terms acceptable to both employer and employees.

 

The author thanks Sadaat Cheema for his help in writing this article.

This article was first published in the Law Society Journal, May 2014

 

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[1] At [33]-[37].Back to article

[2] At [43].Back to article

[3] At [58].Back to article

[4] At [59]-[61].Back to article

[5] At [74].Back to article

[6] Manildra Flour Mills (Manufacturing) Pty Ltd v National Union of Workers [2012] FCA 1010 at [97].Back to article

[7] At [111]-[116].Back to article

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