QHA Review July 2017

Phaedra Crowle EMPLOYMENT RELATIONS
DIRECTING AN EMPLOYEE TO ATTEND AN
INDEPENDENT MEDICAL EXAMINATION (IME)
Two common questions received by the QHA’s
employment relations department are:
• When an employee is returning to work after
being absent with an injury or illness, how can an
employer be reasonably satisfied that the employee
is fit to return to work?
• As an employer, can you compel an employee to
take an IME by an employer nominated doctor?
• Specific work health and safety legislation can give
rise for an employer to reasonably and lawfully
direct an employee to undertake an IME. In the
decision of Grant v BHP Coal Pty Ltd [2017]
FCAFC 42 the Full Bench of the Federal Court
provided guidance of whether an employer can
direct an employee to undertake an IME.
BACKGROUND TO “GRANT V BHP”
Mr Grant worked as a boilermaker for BHP and injured
his shoulder at work. He subsequently sustained
further injuries to his shoulder and was absent from
work for some months later. He submitted medical
certificates indicating that he was fit to return to his
normal duties. However, BHP directed Mr Grant to
see a company doctor to understand if there were
any limitations on his fitness for work and how his
condition would impact his ability to perform his
current role as a boilermaker.
Mr Grant was directed to attend a medical
appointment, to which he refused. Further to this,
the employer commenced an investigation of the
employee’s refusal to attend the appointment and this
subsequently lead to his termination of employment for
failing to follow a lawful and reasonable direction.
Mr Grant filed an unfair dismissal application in the
Fair Work Commission. The Commission found the
direction to attend the medical appointment was lawful
under the Coal Mining Safety and Health Act 1999
(Qld) (CMSH Act) and it was a reasonable direction
to see the company doctor. The employee argued on
appeal to the Full Bench of the Fair Work Commission
that the Commissioner erred in the findings, although,
the employee’s arguments were again rejected. Mr
Grant appealed to the Full Court of the Federal Court
of Australia, to which his appeal was dismissed.
The Full Court construed section 39 of the CMSH
Act to mean that an employer is to take reasonable
and necessary steps to ensure that workers are not
exposed to any unacceptable level of risk.
WHAT DOES THIS MEAN FOR EMPLOYERS?
While the decision in Grant v BHP directly applies to
employers covered by the CMSH Act there are similar
provisions in the Work Health and Safety Act 2011
(Qld) which applies to all workers in Queensland. This
Act provides a duty to ensure the safety of workers,
and, as in the said case, the courts are showing a
willingness to uphold an employer’s decision to give an
employee a lawful and reasonable direction to attend
an independent medical examination. The direction
must be for a proper reason involving assessing an
employee’s fitness to safely perform the inherent
requirement of the position.
Under work health and safety legislation, employers
have a primary duty to ensure, as so far as it is
reasonably practicable, the health and safety of
their workers and that the health and safety of other
persons is not put at risk from work carried out as
part of the conduct of the employer’s business or
undertaking. Employees also have a work health and
safety duty while at work to take reasonable care of
their own health and safety, ensure their acts do not
adversely affect the health and safety of others and
comply, so far as the worker is reasonably able, with
any reasonable instruction that is given by an employer
to allow the employer to comply with workplace health
and safety legislation.
The case also reinforces that if an employee refuses
a lawful and reasonable direction where it involves
work health and safety obligations, the employer may
take further disciplinary action, which may lead to
termination of the employment relationship.
FURTHER INFORMATION
Contact the QHA on 07 3221 6999 or
at er@qha.org.au.
QHA REVIEW | 47