A Compelling Case for Mandatory Medical Examinations2 May 2017
In what has proven to be something of an ongoing saga for BHP Coal Pty Ltd (“BHP Coal”), the Full Federal Court has confirmed the mining giant’s right to dismiss an employee for refusing to see a company doctor.
In 2012, after taking nine months’ sick leave for a work-related shoulder injury, the employee provided BHP Coal with medical certificates stating he was “fit to return to his normal duties,” however, failed to provide any information regarding his shoulder or rehabilitation. When directed to consult a company-nominated occupational therapist to assess his fitness, the employee refused. During the investigation into his refusal, the employee declined to answer questions and was ultimately sacked for failure to comply with reasonable directions.
In lodging his unfair dismissal claim, the former employee claimed that he had a fundamental right to refuse to undergo a medical examination.
In determining whether the employee was unfairly dismissed, the Federal Court held that the Act authorised an employer to compel workers to undergo medical examinations where there is a risk that their injury might endanger workers. In reaching this decision Justices Dowsett, Barker and Rangiah found that an employer was entitled to take “reasonable and necessary action” to ensure the worker was not exposed to unacceptable levels of risk.
The case reminds employers of their general duty of care to ensure that their business does not create any unacceptable levels of risk and jeopardise the safety of others. If an employee is returning to work following an injury or illness, employers are entitled to request a medical assessment of their capacity.