Australia: Can you direct an employee to attend a medical evaluation? It depends, says the Full Federal Court

Last Updated: 16 March 2017
Article by Saul Harben and Amy Toohey

Specific work health and safety laws might give employers a right to direct an employee to attend a medical evaluation, but it's unclear if there's a general implied right in employment contracts.

How far can an employer go to satisfy itself of an employee's fitness to return to work? Can it direct an employee to attend a medical evaluation? The Full Federal Court has given some limited guidance, but its decision in Grant v BHP Coal Pty Ltd [2017] FCAFC 42 has raised more questions than it has answered.

Mr Grant's injuries and his return to work

Mr Grant injured his shoulder multiple times while undertaking duties at the mine; he took eight months of extended sick leave and underwent shoulder stabilisation surgery.

He provided certificates from his general practitioner and orthopaedic surgeon stating that he was fit to return to his normal duties, and then turned up to work. He was informed by the superintendent that he would need to see a company doctor, and would be sent home on full pay until an appointment could be arranged for him.

The superintendent then emailed Mr Grant, directing him to attend a medical appointment, which allow BHP to understand any limitations on his fitness for work and how his condition affected his ability to perform his role. Mr Grant expressed his dissatisfaction.

Mr Grant was warned that failing to attend the appointment would be considered a failure to comply with a reasonable direction. He didn't attend it. Following an investigation and meetings with him (during which he failed to satisfy BHP of the cause for his failure to follow the superintendent's direction), Mr Grant's employment was terminated.

Mr Grant then commenced proceedings in the Fair Work Commission alleging that he had been unfairly dismissed from his employment.

There is a right to direct an employee to attend medical appointment under Queensland's Coal Mining and Safety and Health Act

The Full Court held that section 39 of Queensland's Coal Mining and Safety and Health Act creates an obligation for mineworkers to comply with safety-driven management instructions ? which includes complying with a direction to attend a medical appointment.

It accepted that the employee's supervisor identified a health and safety risk arising from the employee's return to work due to the previously sustained workplace injury and, under the legislation, the supervisor was obliged to take any reasonable and necessary course of action to ensure the workers and others were not exposed to unacceptable levels of risk. In those circumstances, the requirement to undergo a medical examination was a reasonable and necessary course of action.

The Full Court held that the legislation operated to "curtail the right to personal liberty" and that mineworkers were required to attend medical examinations if the circumstances set out in the provisions were met. It therefore held Mr Grant, in refusing this direction, was lawfully terminated.

But is there a broader right to direct employee to attend medical appointment under an implied term of an employment contract?

Unfortunately, the Full Court refrained from deciding on whether there is generally an implied term in the employment contract allowing an employer to direct an employee to attend a medical examination, saying this:

"raises potentially complex issues concerning the legality of a requirement by an employer that an employee undergo a medical examination against his or her will in the absence of legislative authority to do so.... It is unnecessary to consider the first respondent's notice of contention in order to decide the appeal and, in the circumstances, it is undesirable to do so."

Is there a privilege against self-incrimination during workplace investigations?

There's another interesting aspect of the case which, again, the Full Court refrained from deciding: is an employee protected by the privilege against self-incrimination during the employer's internal workplace investigation?

Mr Grant had refused to participate in the interview process during the workplace investigation into his failure to comply with the direction unless the questions were put in writing.

He argued on appeal in the Full Bench of the Fair Work Commission, and in front of the primary judge in the Federal Court, that he was not obliged to obey an instruction to answer these questions because he was protected by privilege against self-incrimination. His argument was that if section 39 of the Coal Mining and Safety and Health Act (Qld) applied, then his failure to comply with the safety and health instruction was potentially an offence, so he ought to be protected by the privilege against self-incrimination.

Both the Full Bench of the Fair Work Commission and single Federal Court judge said they were not required to consider this argument on appeal, but the privilege against self-incrimination did not apply to a workplace interview intended to inquire into an employee's conduct.

The Full Court however left the door open by saying there's no blanket rule that the privilege against self-incrimination is not available in the sphere of employment. It declined to rule on whether it was available to Mr Grant because there were insufficient facts to determine if he had a bona-fide apprehension of a real and appreciable risk of criminal prosecution at the time of the interview.

So can you direct your employee to attend a medical evaluation?

What we said at the time of the first decision is still valid. For employers managing injured employees:

  • 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.

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 bulletin. Persons listed may not be admitted in all states and territories.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.