Return to Work and Medical Assessments
Tuesday 27 May 2014 @ 2.01 p.m. | Industrial Law
In the case of Grant v BHP Coal Pty Ltd [2014] FWC 1712, The Fair Work Commission has found that BHP Coal had a valid reason to dismiss an employee who attempted to return to work at its Peak Downs Mine on the basis that he refused to comply with a lawful and reasonable direction to attend medical assessments with the company’s chosen specialist. The decision indicates that the Commission is prepared to uphold an employer’s right to require that an employee returning from a lengthy injury-related absence obtain a medical clearance from a doctor nominated by the employer.
Facts of the Case
The employee first injured his shoulder at work in October 2011. He subsequently suffered further injuries to his shoulder both at work and at home, culminating in shoulder stabilisation surgery in September 2012. In July 2012, he proceeded on a period of extended sick leave. In March 2013 he received a medical certificate, from the orthopaedic surgeon who operated on his shoulder, stating that he was ‘fit to return to full normal duties’ and subsequently attended for work on 2 April 2013.
On the employee’s return to work he was informed by his manager that he would be required to do a functional assessment test before commencing duties. The employee was directed to attend an appointment with an occupational physician who had knowledge of BHP Coal’s operations. The employee refused to attend this appointment and again refused to attend the appointment when it was rescheduled. Following an investigation into the employee’s refusal to attend the assessment, BHP Coal dismissed the employee.
The Decision
BHP Coal relied on a number of reasons for the dismissal, including the employee’s failure to cooperate with the investigation interview and his attempts to record conversations without the consent of the individuals concerned, as well as his failure to attend the scheduled medical appointment.
Commissioner Spencer referred to the health and safety obligations on coal mine workers under the Coal Mining Safety and Health Act 1999 (Qld). By operation of the Act, the employee’s manager was obliged to take action to ensure the health and safety of the workers with whom the employee would work with at the Mine, and the employee himself. The direction to obtain a functionality assessment was therefore lawful in the circumstances.
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Sources:
Grant v BHP Coal Pty Ltd [2014] FWC 1712 (14 March 2014)
