Employer's right to request independent medical examination

12 April 2017

When managing the return of employees to the workplace after they have been absent due to illness or injury, do employers have the right to direct employees to undergo an independent medical examination by an employer nominated doctor, particularly when they have concerns for the health and safety of employees?

In the recent decision of Grant v BHP Coal Pty Ltd [2017] FCAFC 42, the Full Court of the Federal Court of Australia considered this question and provides guidance to employers.

What happened?

Mr Grant was employed by BHP Coal Pty Ltd (BHP) as a boilermaker at its Peak Downs Mine in central Queensland.

In July 2012, Mr Grant took a period of nine months’ sick leave associated with re-injuring a former work-related shoulder injury. During this time, he underwent shoulder stabilisation surgery. Over the period of his absence, he maintained very little contact with his employer, other than to provide medical certificates.

Immediately prior to his return from leave, Mr Grant provided BHP with medical certificates certifying he was “fit to return to normal duties”. The medical certificates did not provide any further information as to his fitness for work and how his shoulder injury impacted on his ability to perform his role.

When Mr Grant attended the Mine site to recommence work in April 2013, he was directed to attend a medical appointment with a Company nominated doctor by his Superintendent, so as to understand any limitations on his fitness for work.

Mr Grant objected to this, and despite further correspondence and directions to attend two medical appointments, Mr Grant did not attend.

Subsequently, BHP carried out an investigation and issued a notice to Mr Grant requiring him to show cause as to why his employment should not be terminated for failing to follow lawful and reasonable directions to attend an independent medical examination. Following receipt of Mr Grant’s response, BHP terminated his employment on the basis that he had failed to follow their lawful and reasonable directions, contrary to his obligations as an employee.

What did the Courts say?

Following his termination of employment, Mr Grant lodged an unfair dismissal claim under the Fair Work Act 2009 (Cth). It should be noted that in response to this claim, BHP relied upon section 39 of the Coal Mining Safety and Health Act 1999 (Qld) (CMSH Act) to support their contention that they had a right to direct Mr Grant to take any other reasonable and necessary course of action to ensure that no one is exposed to an unacceptable level of risk, which included the right to direct an employee to attend a medical examination.

Both Commissioner Spencer, and subsequently the Full Bench of the Fair Work Commission, dismissed Mr Grant’s applications on the basis that the directions to Mr Grant to attend medical examinations were within the scope of the statutory authority granted under section 39 of the CMSH Act. The Full Bench also concluded that BHP had a contractual right to require Mr Grant to attend the medical examinations. Accordingly, it was held that there was a valid reason for Mr Grant’s dismissal.

In 2015, Mr Grant sought to appeal the decisions of the Fair Work Commission, resulting in the decision of Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374. In dismissing Mr Grant’s appeal, Justice Rares found that the direction of BHP to attend the medical examinations was lawful and that section 39(1)(c) of the CMSH Act permitted the Superintendent to direct Mr Grant to attend.

More recently, however, in Grant v BHP Coal Pty Ltd [2017] FCAFC 42, the Full Court of the Federal Court of Australia heard a further appeal by Mr Grant against the decision of Justice Rares.

In a unanimous decision, the Full Court dismissed Mr Grant’s appeal.

The Full Court found that a “literal or natural reading” of section 39 of the CMSH Act required that a supervisor, such as BHP’s Superintendent, take reasonable and necessary action to ensure that persons were not exposed to an unacceptable level of risk. Having considered the language and objects of the statutory scheme, the Full Court considered that it was clear that the legislature intended that an employee could be directed to undergo a medical examination if necessary to ensure that persons were not exposed to an unacceptable level of risk.

It was also found that section 39 of the CMSH Act required Mr Grant to comply with such a direction.

As to BHP’s contention that an employee was required to obey directions of an employer as an implied term of the contract of employment, the Full Court declined to consider this issue, as it was not necessary to do so to determine the appeal. The Full Court did note, however, that the contention raised “potentially complex issues” regarding the legality of a requirement that an employee attend a medical examination against their will, in the absence of legislative authority to do so.

Lessons for Employers

Where employers are operating under the jurisdiction of the CMSH Act, this decision clearly articulates the right of employers to require employees to undergo medical examinations or issue other lawful and reasonable directions where there might be a risk to others by reason of the employee’s injury.

For other employers, this case indicates the Court’s willingness to uphold reasonable and lawful directions to employees regarding attending independent medical examinations, particularly where doing so aligns with health and safety obligations, supported by legislative authority or other lawful authority such as a contractual right.

Ultimately, this decision reinforces the general principle that there are many situations where an employer can lawfully require an employee to undergo an independent medical examination, provided it has a proper basis to believe that the assessment is reasonably necessary to assess the employee’s fitness to perform the inherent requirements of their position safely, assuming that the employer has a contractual basis for doing so.

This article was written by Jordan Waldock, Solicitor and Dianne Hollyoak, Partner.

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