The injured worker wants to return to work – but is he fit?

The injured worker wants to return to work

As we have highlighted in our previous article, managing work-related injuries can be a delicate exercise, with multiple – and sometimes conflicting – issues. For example, what if the worker has a right to return to work (as set out in a contract of employment) but the employer is concerned they’re still not fit and their return could breach work health and safety laws?

The injured worker wants to return to work – but is he fit?

In a recent case (Grant v BHP Coal Pty Ltd [2014] FWC 1712) the Fair Work Commission has found that BHP Coal had a valid reason to dismiss a worker who attempted to return to work at its Peak Downs Mine on the basis that he refused to comply with a lawful and reasonable direction to attend medical assessments with the company’s chosen specialist. The decision indicates that the Commission is prepared to uphold an employer’s right to require that a worker returning from a lengthy injury-related absence obtain a medical clearance from a doctor nominated by the employer.

Return to work and employer doctor

On 21 October 2011, Mr G(the worker) injured his shoulder while working. Subsequent injuries to his shoulder meant the injured worker needed extended sick leave.

On 27 March 2013, Mr G provided a medical certificate saying he was fit to return to his pre-injury duties. He was told he needed to undergo a medical assessment with occupational therapists engaged by his employer. He did so, and was then told he had to undergo a medical assessment by BHP’s preferred specialist.

The injured worker’s view was that under the enterprise agreement medical clearance from his own doctor was enough. He was then told to see BHP’s specialist, and that if he didn’t this would be considered a failure to comply with a reasonable direction.

A few minutes before his scheduled appointment, the injured worker called the specialist to see if he needed to bring anything along. The specialist said that it would be helpful if he could readily provide the results of any previous examinations. However, the injured worker decided not to go, as BHP had not told him these would be needed.

His supervisor then texted the injured worker with a rescheduled appointment time, reassuring him no documents were needed. The injured worker failed to attend the appointment, and claimed  he did not receive the text message.

The injured worker was subsequently suspended from work on full pay while his refusal to follow directions was investigated; he refused to answer questions during this investigation as they weren’t put to him in writing.

A “show cause” letter was then sent on 5 May 2013, stating Mr G’s failure to attend the medical appointments was a failure to follow lawful and reasonable directions and had resulted in loss of trust and confidence. He responded that the directions were unlawful and unreasonable; his employment was terminated that day.

Mr G claimed this was an unfair dismissal and lodged an unfair dismissal claim with the Fair Work Commission.

Is a direction for further medical assessment of an injured worker a lawful and reasonable direction?

There is an implied term in all employment contracts that an employee must comply with lawful and reasonable directions; failure to do so can be a valid reason for termination.

The key issue for the Fair Work Commission was whether BHP’s directions were lawful and reasonable.

Although the relevant enterprise agreement only required a medical clearance from the worker’s doctor before returning to work, which the injured worker had, FW Commissioner Spencer nonetheless ruled that the directions to undergo further assessment were both lawful and reasonable, and hence Mr G’s termination was not unfair.

She found the directions were lawful, as BHP had express statutory obligations under the Coal Mining Safety and Health Act 1999 (Qld) to ensure health and safety. Its employees did physically demanding work, and there was a real risk of injury if they were not fit to perform it.

They were also reasonable and fair. Mr G’s injury was serious and required a lengthy time off work, and his certificate didn’t identify his steps to ensure that he had recovered and was fit for his particular duties as a boilermaker. BHP could not be satisfied that Mr Gwas indeed fit for work, so it was reasonable to direct him to undergo a medical assessment.

What can we learn from this case

To satisfy obligations under health and safety legislation, employers can require that an worker provide sufficient medical information to satisfy the employer that they are fit to return to work.

In certain circumstances, it may be reasonable for an employer to direct a worker to obtain a medical assessment from a doctor nominated by the employer. The reasons for any such requirement should be explained in writing to the worker concerned.

Employers should take steps to maintain communication with workers who are absent from work due to injury for an extended period of time to ensure that they are adequately prepared for the worker’s return to work.

 

Commissioner Spencer’s decision recognises in unfair dismissal proceedings, the reasonableness of an employer’s decision to terminate will not be assessed solely in light of the contract of employment or applicable enterprise agreement. An employer’s work health and safety obligations will justify lawful and reasonable directions that further the objectives of work health and safety.

It also fits within a broader pattern of decisions where courts have found that overarching work health and safety duties under statute may permit directions or requirements to employees that go beyond what is contemplated under the applicable contract or enterprise agreement.

For example, as we highlighted in our previous article, in Australian and International Pilots’ Association v Qantas Airways Limited [2014] FCA 32 Justice Rares ruled that Qantas had an implied right to request a medical report, a right which arose having regard to its work, health and safety obligations under the Work Health and Safety Act 2011 (Cth).

 

This case is covered in detail on ‘Return to work and employer doctor‘ by Justitia On 23 April, 2014

 

 



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