A recent decision of the Full Court of the Federal Court of Australia has confirmed an employer’s right to direct employees to attend medical appointments.
Grant v BHP Coal Pty Ltd was an appeal against a decision of a single member of the court that affirmed that the Fair Work Commission had not incorrectly dismissed Mr Grant’s unfair dismissal application.
Mr Grant was employed as a boilermaker at a coal mine in Queensland and suffered a work related shoulder injury in 2011. Between 2011 and 2012, Mr Grant re-injured the shoulder a number of times both during and outside work hours. In April 2013, Mr Grant’s GP and orthopaedic surgeon sent letter to BHP certifying that he was fit to resume pre-injury duties. When he attended the site to commence work, Mr Grant was instructed that he would not be permitted to do so until he attended a doctor of the Company’s choosing.
He was sent home on full pay until an appointment could be arranged. Despite being warned that not attending could be regarded as refusal of a lawful and reasonable instruction which could result in disciplinary action (including dismissal), Mr Grant failed to attend the appointment.
At a meeting on 30 April 2013, Mr Grant was given a notice asking him to show cause why his employment should not be terminated. Mr Grant responded by saying that he had not failed to follow any lawful and reasonable direction and maintained that the direction to attend the BHP doctor was unlawful. His employment was terminated on 6 May 2013.
The decision of the Fair Work Commission and on appeal found that the direction to attend the doctor was authorised by the Coal Mining Safety and Health Act 1999 (Qld) and the contract of employment. It was therefore lawful. In the circumstances of the case, the direction was also reasonable. He was to perform inherently dangerous work in an inherently dangerous workplace. He was directed to attend a specialist occupational physician with knowledge of the coal mining industry. Mr Grant’s treating doctors were not so specialised. Therefore there was a valid reason for Mr Grant’s dismissal.
In finding that the direction to attend the medical appointment was authorised under the Coal Mining Act the full Federal Court did not consider whether the Fair Work Commission was correct in deciding that the direction was also lawful under Mr Grant’s contract of employment.
While the Coal Mining Safety and Health Act was relied on to affirm the employer’s right to instruct an employee to attend a medical appointment, the cas does provide some important general guidance for employers. Firstly the finding of the Fair Work Commission that an obligation to obey the instruction was an implied term of Mr Grant’s contract of employment was not disturbed by the Full Federal Court. Secondly the circumstances of the employment, the risk it created for Mr Grant and others at the workplace, tended to affirm that the instruction was both lawful and reasonable. Thirdly, the Company conducted a full investigation into Mr Grant’s conduct and surrounding circumstances. Lastly, Mr Grant was given an adequate opportunity to explain his conduct and give reasons why his employment should not be terminated.
NECA Member not employer of labour hire worker, Court finds
NECA has successfully defended a claim by the CEPU in proceedings before the Federal Circuit Court.
The CEPU alleged that a worker introduced and supplied by a labour hire firm was in fact an employee of the NECA member and had been underpaid overtime, all purpose allowances, shift loading and annual leave. The union relied on a letter from the NECA member that (confusingly) offered the worker employment and stated that his conditions of employment would be as contained in a future enterprise agreement and the Electrical Award. The letter went on to say that the workers first 12 weeks would be a probation period “via” the labour hire provider.
In finding that the worker was not an employee of the NECA member, and therefore was not entitled to the claims for underpayment made by the union, his honour Judge Street was satisfied that the worker was a casual employee of the labour hire provider. He had been employed previously by the labour hire provider under a terms of engagement document. The terms of engagement continued to apply to the worker when engaged on the NECA member’s project. The worker continued to be paid by the labour hire provider for the duration of his engagement. He submitted time sheets to the labour hire firm and received pay advices and a group certificate in return. He also made pay enquiries of the labour hire provider.
His honour was also satisfied that in any event, the worker had not been underpaid. The hourly rate paid to him was inclusive of all purpose allowances and shift loading. It applied to all hours worked including overtime. The separate allowances payment shown on the worker’s payslips was applicable to fares travel and other allowances not forming part of the all purpose rate.
The letter provided to the worker by the NECA member emerged as a significant issue in the above case. In the absence of the other circumstances relied on by NECA in the proceedings, the CEPU may have succeeded in its claim. It is most important that letters of appointment, contracts of employment and other correspondence addressed to workers are drafted with care. Members should obtain NECA’s or other legal advice when drafting such documents.
For more information, please contact Jakov Miljak on 1300 361 099 or email Jakov.Miljak@neca.asn.au.