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

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.