What medical certificate will do?
Decision to sack Peak Downs mine over functional assessment upheld on appeal
Wednesday 24 January 2018
Employers in the resources sector have retained the right to dismiss employees who refuse to attend a functional assessment with their chosen medical professional before returning to work.
This week a Fair Work Commission (FWC) hearing concluded, in which former Peak Downs miner and CFMEU delegate Darrin Grant tried to appeal a decision by the court in 2014 which upheld his dismissal from BHP's Peak Downs operation.
Mr Grant was dismissed in mid-2013 after he refused to attend two separate medical appointments upon returning from eight months sick leave for a shoulder injury and operation.
On 27 March 2013, Mr Grant informed BHP he was fit to return to his pre-injury duties and presented two medical assessments to that effect. One from Dr Bastable, a medical practitioner at the Mater hospital in Mackay and another by Dr Cutbush, the orthopaedic surgeon who had conducted his shoulder surgery.
However, BHP was not satisfied with the generalised medical certificates before it, and on the advice of its HR staff, requested Mr Grant attend its nominated medical specialist for a functional assessment test before being assigned duties.
However, Mr Grant’s disputed this directive, and his representative the CFMEU argued that the BMA Enterprise Agreement only required the presentation of a medical certificate from the employee's medical practitioner before returning to work in relation to a non-work-related injury.
BMA’s Field Maintenance Superintendent at the time Mr Gustafson was of the view (in response) that his obligations under the Coal Mine Safety and Health Act (CMSH) overrode any terms of an enterprise agreement and insisted Mr Grant see the nominated Doctor.
In the end, the dispute over the issue escalated and contributed significantly to Mr Grant’s dismissal, which he then challenged in the Fair Work Commission.
Upon receiving evidence from both parties in 2014, Commissioner Spencer ruled in BHP’s favour on the basis that they were entitled to require further medical information.
She also noted that despite his experience and work history, Mr Grant's "failure to follow the lawful and reasonable directions - specifically the failure to attend the medical assessments - and his unreasonable refusal to participate in the disciplinary investigation” formed a valid reason for his dismissal.
However, this week Mr Grant sought to appeal that decision arguing that Commissioner Spencer had erred in 10 different areas.
While the FWC addressed each of the ten grounds for appeal, it ultimately upheld the 2014 ruling.
“The application raises issues of general application for employees in coal mining operations in Queensland and who are subject to the CMSH Act and CMSH Regulation, and bears on the proper interpretation of how health assessments are authorised under that legislative framework and otherwise,” the FWC said.
“There are also claims that the decision of the Commissioner was not harmonious with a decision of the Queensland Court of Appeal.
“In such a context as argued, we consider the public interest justifies granting permission to appeal.
“Having so decided to allow the appeal, we have not identified an error of law or a significant error of fact in the Commissioner’s decision, and consequently, we uphold the Commissioner’s decision and dismiss the appeal.”