15 May 2014

Work health and safety can trump injured workers' right to return to work

by Michael Byrnes

An employer's work health and safety obligations will justify lawful and reasonable directions that further the objectives of work health and safety.

Managing work-related injuries is often a delicate exercise, with multiple – and sometimes conflicting – issues. For example, what is the employee has a right to return to work (as set out in a contract of employment or enterprise agreement) but the employer is concerned they're still not fit and their return could breach work health and safety laws?

A recent decision of the Fair Work Commission has found that those work health and safety obligations can entitle an employer to require extra medical assessment beyond what is contemplated in the employment contract or enterprise agreement (Grant v BHP Coal Pty Ltd [2014] FWC 1712).

The injured worker wants to return to work – but is he fit?

On 21 October 2011, Mr Grant injured his shoulder while working. Subsequent injuries to his shoulder meant he needed extended sick leave.

On 27 March 2013, Mr Grant provided a medical certificate saying he was fit to return to his pre-injury duties. He was told he needed to undergo a medical assessment with occupational therapists engaged by his employer. He did so, and was then told he had to undergo a medical assessment by BHP's preferred specialist.

Mr Grant's view, expressed to his supervisor, was that under the enterprise agreement medical clearance from his own doctor was enough. He was then told to see BHP's specialist, and that if he didn't this would be considered a failure to comply with a reasonable direction.

Five minutes before his scheduled appointment, Mr Grant called the specialist to see if he needed to bring anything along. The specialist said that it would be helpful if Mr Grant could readily provide the results of any previous examinations. Mr Grant decided not to go, as BHP had not told him these would be needed.

His supervisor then texted Mr Grant with a rescheduled appointment time, and assuring him no documents were needed. Mr Grant failed to attend, claiming that he did not receive the message.

Mr Grant was then suspended on full pay while his refusal to follow directions was investigated; he refused to answer questions during this investigation as they weren't put to him in writing.

A "show cause" letter was then sent on 5 May 2013, stating Mr Grant's failure to attend the medical appointments was a failure to follow lawful and reasonable directions and had resulted in loss of trust and confidence. He responded that the directions were unlawful and unreasonable; his employment was terminated that day.

Mr Grant claimed this was an unfair dismissal and went to the Fair Work Commission.

Is a direction for further medical assessment a lawful and reasonable direction?

There is an implied term in all employment contracts that an employee must comply with lawful and reasonable directions; failure to do so can be a valid reason for termination.

The key issue for the Fair Work Commission was whether BHP's directions were lawful and reasonable.

Although the relevant enterprise agreement only required a medical clearance from the employee’s doctor prior to returning to work, which Mr Grant had, Commissioner Spencer nonetheless ruled that the directions to undergo further assessment were both lawful and reasonable, and hence Mr Grant's termination was not unfair.

She found the directions were lawful, as BHP had express statutory obligations under the Coal Mining Safety and Health Act 1999 (Qld) to ensure health and safety. Its employees did physically demanding work, and there was a real risk of injury if they were not fit to perform it.

They were also reasonable and fair. Mr Grant's injury was serious and required a lengthy time off work, and his certificate didn't identify his steps to ensure that he had recovered and was fit for his particular duties as a boilermaker. BHP could not be satisfied that Mr Grant was indeed fit for work, so it was reasonable to direct him to undergo a medical assessment.

Lessons for employers managing injured employees

Commissioner Spencer's decision recognises in 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.

It also 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 Justice Rares 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).

For employers managing injured employees, this means:

  • while the employment contract or enterprise agreement is crucial, it is not the only consideration – the whole legal matrix is relevant, including work health and safety laws, adverse action, workers' compensation laws, and unfair dismissal laws;
  • 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;
  • any directions must however be lawful and reasonable;
  • ideally, when negotiating a contract or enterprise agreement you should try to address these situations in clear terms acceptable to both employer and employees.

Thanks to Sadaat Cheema for his help in writing this article.


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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.