by Sid Sidhu and Troy Wild, NRA Legal
Full Court affirms employer’s right to compel medical assessment
Grant v BHP Coal Pty Ltd  FCAFC 42 (10 March 2017)
The Full Federal Court has confirmed that employers have the right to dismiss an employee should they refuse to attend a medical appointment to assess their capacity, on their return to work.
The decision was made following a “natural reading” of s 39 Coal Mining and Safety and Health Act 1999 (Qld) (the Act), which mandates that workers must comply with OHS-driven directions.
The facts of the case were such that an employee took extended sick leave to undergo surgery for an injury he sustained at work. A year later, he was cleared as fit to work by his GP. However, his employer sought to confirm his capacity by instructing him to see a specialist.
The employee was sent home on full pay but later refused to attend the medical assessment. During an investigation into his refusal, the employee declined to answer questions and was ultimately dismissed for his failure to comply with reasonable directions.
In determining whether the employee was unfairly dismissed, the Fair Work Commission (FWC) held that the Act (as well as the employee’s contract) authorised the employer to compel another medical assessment. According to Commissioner Paula Spencer, the employee’s GP was not a specialist in the field and he had no legitimate reason for refusing to attend the second appointment.
On appeal, the employee argued that the FWC failed to consider BHP’s infringement on his personal liberty. He also alleged that the Full Bench of the FWC made jurisdictional errors and that his refusal to participate in the investigation was due to the privilege against self-incrimination.
The Federal Court rejected these arguments and held that the privilege does not apply to specific workplace investigations. Under the Act, the employer was entitled to take “reasonable and necessary action” to ensure the worker was not exposed to unacceptable levels of risk.
What does this mean for retailers?
Employers in the retail environment are reminded of their general duty of care to ensure that their business does not create any risk of harm to the health and safety of others. If an employee is returning to work following an injury or illness, you are entitled to request a medical assessment of their capacity. Should they fail to comply with this instruction, you may rely on an implied term in the contract of employment that the employee obey all lawful and reasonable directions.
In cases of injured or sick employees, we can assist with the preparation of letters, investigations and general advice. For more information, contact the National Retail Association today on 1800 RETAIL (1800 738 245).