An Employer’s Right to Insist on Clearance from Company-Nominated Doctor

A recent decision by the FWC on an unfair dismissal case (Mr Darrin Grant v BHP Coal Pty Ltd [2014] FWC 1712 (14 March 2014), caught my attention as I felt there are many businesses that could relate to the circumstances of this case.

In this matter, BHP Coal employed a boilermaker at their Peak Downs Mine from November 2003 until his dismissal in May 2013.  The employee had injured his shoulder several times, both at work and outside work, before shoulder surgery in September 2012.  The employee had been on a lengthy period of injury-related absence from July 2012, until his attempt to return to work in April 2013 after receiving a general medical clearance by the employee’s own doctor.  Unfortunately the information BHP Coal had received from the employee’s doctor was quite insufficient, and the employee refused to attend several scheduled and rescheduled company-organised medical appointments to determine whether he had any restrictions on his ability to work.  The employee continued to refuse to attend, despite being warned this could lead to disciplinary action, including dismissal. 

The Decision

Commissioner Paula Spencer said it was reasonable for the company to both require the worker to be medically assessed and for this assessment to be carried out by a doctor chosen by the company.  She said that when the worker sought to return to work, he gave the company only general medical certificates that failed to specify the injury, rehabilitation or any potential restrictions on his capacity at work.  She said, “that situation alone would reasonably have caused the company to seek further information, before allowing the employee onto the mine site to perform potentially dangerous work, in an inherently dangerous workplace.”  She said the increased safety risks inherent in mining operations also meant that BHP Coal was justified in seeking to have the worker’s medical assessment performed by a doctor with knowledge of mining and the company’s operations.  She said the occupational physician’s expertise was the “interaction between medicine and the workplace” and he had knowledge and experience of the mining industry, while the employee’s doctors did not.  In considering all of the facts of this matter, the Commissioner believed BHP Coal was entitled to dismiss the employee in this case.

Lessons for the Employer

Although BHP Coal may have won this case, the Commissioner did make mention that the Peak Downs Mine “took no steps, during the employee’s absence to monitor the situation or to understand what steps” the company might need to take to facilitate the boilermaker’s safe return to work.  She also said that the company should have also done more to explain to the worker why it required him to take part in a further medical assessment after being given the all-clear to return by his own doctor.

If anyone has any questions on this case and/or similar concerns within your business, please don’t hesitate to give me a call on (07) 3399 4977 or 0414 570 988.

Kind Regards
Mel

 

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