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Fair Work Commission clarifies when an employer can direct an employee to attend a medical examination


The Full Bench of the Fair Work Commission (FWC) recently handed down a judgment which examined the lawfulness of dismissing an employee who refused to attend a medical appointment, as directed by their employer.

Background

The Appellant (Mr Grant), worked as a boilermaker at a coal mine operated by the Respondent (BHP Coal). Around October 2011 the Appellant was injured at work, and was subsequently on sick leave from July 2012, prior to undergoing surgery in September 2012.

In March 2013 the Appellant provided the Respondent with generalised medical certificates signed by a medical practitioner who the Appellant had regularly seen over the course of his injury, stating he was ‘fit to return to his normal duties as and from Monday April 1st 2013’, and from the surgeon, stating he could return to full duties from 30 May 2013.

The Respondent was not (on the basis of the generalised medical certificates) satisfied that the Appellant could safely resume his pre-injury duties following an eight month long absence, during which the Appellant had undergone surgery, and directed the Appellant to attend its nominated medical specialist before being assigned duties.

The authority which allowed the Respondent to direct the Appellant to attend a specific medical practitioner was contested.

The Respondent said it was acting under the Coal Mining Safety and Health Act 1999 (Qld) (CMSH Act), whilst the Appellant argued that the relevant Enterprise Agreement (agreement) only required a medical certificate from an employee's medical practitioner prior to returning to work. The Respondent stated its obligations under the CMSH Act overrode any term in the agreement.

The Appellant failed to attend scheduled medical appointments and, following other events related to that failure, including attending the mine (despite having been directed not to do so), seeking to record conversations with other employees  and failing to participate in related investigations, was dismissed in May 2013.

The Appellant unsuccessfully brought an unfair dismissal case against the Respondent, and subsequently appealed.

Unfair Dismissal under the Fair Work Act

A previous Flag Post outlined when the Fair Work Act 2009 (FWA) provides that a person has been unfairly dismissed. At first instance the FWC found that the Appellant had not been unfairly dismissed as:

In summary terms, the aggregate of the Applicant’s conduct in relation to the failure to follow the lawful and reasonable directions - specifically the failure to attend the medical assessments - and his unreasonable refusal to participate in the disciplinary investigation formed a valid reason for dismissal.

On appeal the Appellant argued that the Respondent was not, as a matter of law, able to direct him to attend the medical assessments nor able to do so by way of a contractually-derived command as:

  • there was no basis on which to imply a further term into employment contract, because
  • the CMSH Act, associated regulations and agreement ‘covered the field’ in relation to medical assessments when returning to work from injury, and
  • those instruments did not specifically require the Appellant to attend a medical assessment with a doctor nominated by the Respondent.

Hence the directions were unlawful, and the dismissal unfair. The FWC rejected this argument, and found that the direction was lawful and reasonable.

The common law

The FWC noted that it has long been established at common law that employees must follow a direction given by their employer, provided it:

…relates to the subject matter of the employment and involves no illegality… In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.

The FWC concluded that the power to issue a direction that is lawful and reasonable is not limited to circumstances where it is founded on a positive rule of law or an express statutory provision. Put another way, the FWC was of the view that the common law allows employers to give a direction without a contractual or legislative basis, provided it is not illegal and relates to the subject matter of the employment.

Why is the case important?

The case builds on previous cases that have dealt with when an employer can (and cannot) direct an employee to attend a medical appointment with a specific practitioner, and also provides valuable insight into how the common law interacts with related statutory or contractual provisions.  However, the case should not be viewed as standing for a general proposition that every direction by an employer to an employee to attend a nominated medical practitioner will be reasonable. Whether such a direction is reasonable will largely turn on the circumstances of each case. For example, where an employee contracts a cold and takes personal leave (and does not have a history of excessive or regular use of personal leave for colds) it is unlikely that a direction to attend a specific doctor would be reasonable.