DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Mr Darrin Grant
v
BHP Coal Pty Ltd
(C2014/3771)

Appeal against decision [2014] FWC 1712 of Commissioner Spencer at Brisbane on 14 March 2014 in matter number U2013/10299 - power to direct a coal mine worker to attend a medical appointment for a functional assessment - Coal Mine Health and Safety Act - Coal Mine Health and Safety Regulation - not unlawful and reasonable directions

[1] This matter concerns an appeal against a decision by Commissioner Spencer in [2014] FWC 1712 to dismiss the application under s.394 of the Fair Work Act 2009 (“the FW Act”) by Mr Darrin Grant (“the Appellant”), who is represented by the CFMEU. The Appellant was dismissed by BHP Coal Pty Ltd (“the Respondent”) from its Peak Downs Mine (“the mine”) on 17 May 2013. The facts as set out in the decision can be summarised as follows.

[2] The Appellant performed duties as a boilermaker for over nine years at the mine, and also performed the role as an area delegate of the CFMEU of the field crew (maintenance).

[3] At sometime around October 2011 the Appellant sustained an injury to his right shoulder in the course of his duties. The Appellant re-injured himself subsequently on what was said in the decision to be “a number of occasions”, which occurred both inside and outside of work.

[4] The Appellant was on extended sick leave on or about 23 July 2012 whilst receiving treatment for his shoulder injury. In September 2012 the Appellant underwent shoulder surgery.

[5] On 27 March 2013 the Appellant informed the Respondent that he was fit to return to his pre-injury duties. He provided a medical certificate to this claimed effect. That medical certificate was signed by a Dr Bastable, a medical practitioner at the Mater hospital in Mackay, who the Appellant had regularly seen over the course of his injury. Dr Bastable’s medical certificate stated the Appellant was “fit to return to his normal duties as and from Monday April 1st 2013”.

[6] The Appellant had also submitted a medical certificate to the Respondent issued by Dr Cutbush, an orthopaedic surgeon who conducted shoulder surgery on the Appellant. Dr Cutbush’s medical certificate stated that the Appellant was fit to return to full duties as of 30 May 2013.

[7] The Respondent was not satisfied on the basis of the generalised medical certificates before it that the Appellant could safely resume his pre-injury duties following an 8 month long absence, during which the Appellant had undergone surgery. The Respondent required the Appellant, on the advice of its HR staff, to attend its nominated medical specialist for a functional assessment test before being assigned duties. The Appellant was not required to attend work and was paid in full for the duration of this process.

[8] The Appellant and the Respondent then entered into communications in which there was a contest as to the authority upon which the Respondent was acting. The Respondent - through Mr Gustafson, the field maintenance superintendent at the mine - said that it was acting under the Coal Mining Safety and Health Act 1999 (Qld) (“the CMSH Act”). The Appellant gave evidence that Mr Gustafson explained to him on 3 April 2013 that the reason for his (Mr Gustafson’s actions) was that:

“I’ve got an obligation under the Coal Mining & Health Act to ensure the safety of our people on the mine. We just have to make sure that we don’t send you out on the mine, particularly after you’ve had such an extensive time off. You may re-injure yourself at work.” 1

[9] The Appellant sought particularisation of the section under the CMSH Act that Mr Gustafson was acting, and Mr Gustafson replied that it concerned the “obligations of a coal mine operator”. No further particularisation was provided.

[10] The Appellant contended in reply that clause 18 of schedule BMA Enterprise Agreement 2012 (“the agreement”), which relates to a return from work from a non-work related injury, only required the presentation of a medical certificate from an employee's medical practitioner prior to returning to work in relation to a non-work-related injury. Mr Gustafson was of the view (in response) that his obligations under CMSH Act overrode any term of an enterprise agreement.

[11] The Appellant was at all times represented by the CFMEU. The Appellant took the view that the matter was now in dispute, under the terms of the agreement, for the reason that he had been stood down without adequate explanation or authority.

[12] On 10 April 2013, the Appellant received an e-mail directing him to attend a medical appointment on 17 April 2013. The appointment was arranged with a visiting medical practitioner, Dr McCartney, who was trained as an occupational physician and had specific knowledge of the Respondent’s mine operations. The e-mail directed to the Appellant read, in part, as follows:

“As discussed I require you to attend a medical examination so that I can understand any limitations with respect your fitness to work, and how this impacts on your ability to perform your substantive position as mine employee – boilermaker at Peak Downs mine.

I would like to take this opportunity to reinforce that we remain committed and focused on ensuring your safety at work. BMA has a duty of care to provide all employees with a safe working environment and given your injury, we need to be satisfied that you can safely perform the inherent requirements of your role.” 2

[13] Mr Gustafson continued to remind the Appellant that he was subject to a direction to attend the medical appointment and that failure to comply with a reasonable direction would give rise to a disciplinary review. On 17 April 2013, at 7:55 AM, Mr Gustafson left a voice message on the Appellant's mobile phone in the following summary terms:

“[...] Just making sure that you got that direction that you need to attend that medical examination today from the specialist we're flying up from Brisbane. [...].” 3

[14] Upon receiving this message the Appellant entered into a series of text exchanges with Mr Gustafson questioning the basis of his ‘stand down’ suggesting he had further questions about the doctor’s appointment for that day.

[15] Then again on the same day at 10 AM (an hour before the appointment with the medical practitioner), Mr Gustafson sent this text message:

Hey Darrin it’s Bill from Peak Downs again. Hey with regards to your doctor appointment I’m going to ask you for the fourth time, we required you to attend so I am giving you a directive to attend a doctor appointment at 11 o'clock. Failure to do that will be reviewed and considered a failure to comply with a reasonable direction [...] And as far as the disputes go, we have had nothing put in dispute. [...] If you have any other concerns, please call, bye. 4

[16] Throughout this period, when the Appellant had contact with various employees of the Respondent he requested to record the conversations. All but Dr McCartney did not agree to have the conversations recorded. There was no evidence that the Appellant recorded any conversation without the agreement of the other parties.

[17] The Appellant sought to attend the mine site on 15 April 2013, despite the Respondent's directions. The Appellant was denied access to the site until he had undertaken the functional assessment.

[18] The Appellant did not attend the medical appointment as booked for him and as he was advised. He claimed he did not do so because Dr McCartney indicated to him - upon the Appellant telephoning him some five minutes prior to the appointment from the car park at the doctor’s practice - that it was a matter for him (the Appellant) if he wished to bring along any x-rays, CT or MRI scans that he had in his possession, or if he did not have them but he wanted to bring them along, he could reschedule his appointment.

[19] The Appellant elected to reschedule and telephoned Mr Gustafson accusing him of neglecting to inform him that he needed to bring along x-rays and scans.

[20] When the Appellant was asked how long it would take him to obtain his x-rays and scans he responded, “a month”. The Appellant argues that he said this jokingly at the time, but admitted - in his written statement - his comment caused Mr Gustafson considerable anxiety.

[21] According to Mr Gustafson, the Appellant was asked to stay available for purposes of being contacted about a rescheduled appointment.

[22] At 12:19 PM on 17 April 2013, Mr Gustafson left a message on the Appellant's mobile voicemail bank informing him that his medical appointment had been rescheduled for 1:30 PM that day, and that it was not necessary to have the scans and x-rays in his possession at the time. There is further comment on the evidence in relation to this matter below.

[23] At 12:28 PM the Appellant sent a text message to Mr Gustafson informing him that he was receiving too many communications from him and that all future correspondence and communications should be directed to his union delegate.

[24] The Appellant contended that this text message to Mr Gustafson was not a reply to the voicemail message of 12:19 PM that day (some 10 min prior) and that he had in fact not become aware of the voicemail message until much later that afternoon, thereby causing him to miss the rescheduled medical appointment.

[25] There is evidence, however, that the Appellant had been in communication with his CFMEU representative before the rescheduled time of the medical appointment and advised him of the rescheduled appointment. That evidence suggests that the Appellant, far from not becoming aware of the rescheduled appointment until later in the afternoon, actually had knowledge of the new time, and simply decided not attend the appointment.

[26] At a later point, the Appellant attended a medical practitioner of his own choice who was not his treating practitioner over the course of his injury and did not have any access to the Appellant’s x-rays and scans. That medical practitioner provided an “interim” report which was conditional on a review against a risk profile of the Appellant’s position. In attending this medical practitioner, the Appellant acted on the advice of his union representative.

[27] Upon being advised that the Appellant had not attended the rescheduled medical appointment, Mr Gustafson requested that the Appellant attend a meeting for the purpose of investigating the Appellant’s conduct. The Appellant was also informed that he was suspended on full pay. The meeting took place on 22 April 2013.

[28] The Appellant attended the meeting with his CFMEU representative. The Appellant did not answer any questions regarding his conduct in not attending the medical practitioner appointments. Instead, the Appellant stated that he would not answer any questions unless they were placed in writing. The Appellant asked for a list of questions. Mr Gustafson stated that he did not have very many questions and did not have a list. The only question that was asked was, “can you run through what happened last Wednesday?” No reply was given. The meeting ended on that basis.

[29] The CFMEU made steps to lodge a dispute application with the Respondent about the treatment of the Appellant. That notification occurred on 23 April 2013, the day after the interview referred to above.

[30] On 26 April 2013 the Appellant was asked to attend a further meeting, to be held on 30 April 2013. At this further meeting the Appellant was provided with a show cause letter to which the Appellant was asked to respond by Friday, 3 May 2013.

[31] The central thrust of the show cause letter was that the Appellant had failed to follow lawful and reasonable directions to attend a medical appointment, and that this had undermined the trust and confidence between the Appellant and the Respondent. The show cause letter also made reference to the conduct of the Appellant in “taping conversations without the consent of other parties”.

[32] The Appellant responded to the show cause letter on 6 May 2013, and claimed that the direction to attend a medical assessment was unlawful and unreasonable. A further meeting was convened and at that time the Appellant’s employment was terminated.

[33] The termination letter provided to the Appellant set out a number of reasons for the dismissal of the Appellant. In summary, those reasons include that the Appellant:

● refused to attend the original appointment with Dr McCartney on 17 April 2013 as well as the rescheduled appointment, after being directed to attend, and after having been warned that failure to attend would result in disciplinary action; 5

● refused to participate in answering questions during the investigation interview with Mr Gustafson on 22 April 2013 and that his attitude during the meeting was uncooperative, and that he had failed to treat Mr Gustafson with courtesy and respect; 6 and

● on numerous occasions taped conversations without the consent of work colleagues. 7

Commissioner's view on whether there was a power to direct an employee to attend at a medical practitioner

[34] The Commissioner, initially, rejected the Appellant’s argument and adopted the Respondent’s submission that it properly relied upon an implied grant of power arising from s.39 of the CMSH Act, which is set out further below.

[35] Thus, the Commissioner found the employer had a power to give a lawful direction to the Appellant to attend a medical assessment. The Commissioner subsequently also determined that the direction was not only lawful (if more was needed) but reasonable in the circumstances, given that: the Appellant had not performed duties on the mine for an eight month period; his duties involved heavy manual labour; he had undergone surgery on his shoulder and associated rehabilitation (the details of which had not been disclosed); the medical certification of the Appellant’s fitness for work was couched in broad or general terms; and the doctor to whom the Appellant was referred by the Respondent was a specialist occupational physician working with experience in the setting of the mining industry, and the Respondent's site in particular.

Valid reason

[36] Having established that the Respondent could reasonably and lawfully give a direction requiring the Appellant to attend a medical assessment, the Commissioner then proceeded to give consideration to wider aspects of the Appellant’s conduct for purposes of establishing whether there was a valid reason for the dismissal. In so doing, the Commissioner made a series of findings and gave consideration to a series of matters in reaching an ultimate conclusion.

[37] The Commissioner considered that the Appellant's conduct in seeking to record telephone conversations with employees of the Respondent, amongst others, was a concern that she had taken into account “in terms of other relevant factors in this matter”. 8 The Commissioner did not find that the conduct in relation to the recordings was conduct that could found a valid reason for the dismissal of the Appellant.

[38] The Commissioner considered the circumstances of the reasonableness of the direction to require the Appellant to attend on a medical practitioner to ensure that the Appellant was medically fit to resume his duties at the mine. The Commissioner considered that the various medical certificates that had been supplied to the Respondent were in a generic form and did not disclose over the lengthy period of the Appellant’s absence the nature of the injury or the rehabilitation measures undertaken (as mentioned above).

[39] The Commissioner found that “this situation alone would reasonably have caused the Respondent to seek further information, before allowing the Appellant onto the mine site to perform potentially dangerous work, in an inherently dangerous workplace.” 9 The Commissioner went on to observe:

“This necessity to confirm the fitness for duty should have been reasonably apparent to any reasonable person returning to work on mine site, who had experience in working in mines.” 10

[40] The Commissioner also concluded that:

“I am satisfied that the Respondent was reasonable in requiring the Applicant to attend upon Dr McCartney. The Respondent relied upon the opinion of Dr McCartney as he was specifically trained as an occupational physician, and possessed the knowledge of the Respondent’s operations. That is, his area of medical expertise being the interaction between medicine and the workplace.” 11

[41] The Commissioner went on to consider the circumstances of the failure to attend the first (11.30 am) appointment with Dr McCartney and concluded that the Appellant had intentionally avoided participating in the medical examination. The Commissioner noted that the Doctor had travelled to Mackay for the appointment.

[42] The Commissioner also concluded that the Appellant had intentionally missed the (second) rescheduled appointment with Dr McCartney as well. She accepted Mr Gustafson’s evidence that the Appellant was to expect further information about the rescheduled arrangements. The Commissioner found “illogical” the fact that the Appellant claimed he nonetheless simply missed Mr Gustafson’s voice message, particularly in circumstances in which he “had been specifically warned that disciplinary action may result” should he not attend the appointment. 12

[43] Having so found, the Commissioner concluded that:

“On the evidence the failure of the Applicant to attend upon Dr McCartney, on both occasions, formed part of the valid reason for the dismissal.” 13

[44] The Commissioner also found that the Appellant “unreasonably refused to co-operate and participate in the investigation process, whereby he refused to respond to questions from the Respondent, unless the questions were first committed to writing by the Respondent.” 14

[45] The Commissioner found that the issues at hand were relatively straightforward and that the Appellant’s request that every question be put in writing “unreasonably” restricted the interview process and constituted a refusal to participate in that process. 15

[46] The Commissioner found that the Appellant's position “gave further insight into” his “approach to the employment relationship”, and was satisfied “that this refusal to participate in investigation process formed part of a valid reason for the dismissal”. 16

[47] The Commissioner’s findings in relation to s.387(b) through to s.387(e) of the FW Act were uncontroversial.

[48] The Commissioner, when discussing the requirements of s.387(g) of the FW Act considered that there had been deficiencies in the communications between the Appellant and the Respondent in the period leading up to the dismissal. This was particularly so in respect of “the lack of explanation for the medical attendance, which could have reasonably been provided with some further clarity”. 17 The Commissioner was here referring to the absence of a precise statutory reference by Mr Gustafson or any of the Respondent’s managers to the power to refer the Appellant to a medical practitioner other than by a generalised reference to “the CMSH Act”, and an early reference to the PPI policy.

[49] The Commissioner returned to this theme in considering the requirements of s.387 (h) of the FW Act and further commented that she could “see no reason why the Respondent could not have clearly explained to the Applicant and his representatives, the basis of their responsibilities and associated concerns regarding the nature of the medical information (or lack of) that they had available to them, regarding the Applicant's fitness to work.” 18

[50] For the purposes of s.387(h) of the FW Act the Commissioner found in summary as follows:

● That the Appellant attended at the mine upon return from his injury and lengthy absence (on 2 April 2013) despite being aware he had not properly communicated the details of the date of his expected return to the Respondent; 19

● The Appellant attended at the mine on 16 April 2013 despite having been directed not to attend the mine until he had been declared fit to resume his former duties by the Respondent's nominated medical practitioner; 20

● The Appellant had “felt it necessary to record various conversations and messages, in circumstances where there was no evidence presented of any previous dubious or deceptive actions [...] on the part of any persons representing the Respondent”. 21

[51] The Commissioner also took into account that the Appellant had made a statement of claim (dated 1 October 2013) in a WorkCover application declaring that he had a “20% impairment”, despite his claims that he was fit to resume his duties and no further medical evaluation was warranted. The statement of claim declared that the Appellant “suffers pain and is restricted in his movement”. The Commissioner noted that the Appellant declined an opportunity to provide evidence on this matter and that it was open to her to infer that evidence in relation to “the WorkCover claim would not have assisted his case”. 22 No other finding was made in relation to this matter.

[52] Having set out the evidence before her and considered the various requirements of the Act the Commissioner concluded as follows:

“In summary terms, the aggregate of the Applicant's conduct in relation to the 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 dismissal.” 23

[53] The Commissioner consequently dismissed the application under s.394 of the FW Act.

Relevant appeal principles

[54] The Full Bench in Bluescope Steel Limited v Peco Sirijovski 24 recently set out the principles applicable to this appeal. Those principles are as follows.

[23] An appeal under s.604 of the Act involves an appeal by way of rehearing, with the powers of the Full Bench being exercisable only if there is error on the part of the primary decision-maker: see Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission. The majority of the High Court in that case explained in the following passage how error may be identified where a discretionary decision is involved:

“Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process (See Norbis v Norbis (1986) 161 CLR 513 at 518-519). And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal.” 

[24] The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King in these terms:

“If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so”; and

“It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion...”

[25] An appeal under s.604 of the Act may only be pursued with the permission of the Commission. Section 604(2) requires the Commission to grant permission to appeal if it is satisfied that it is in the public interest to do so. However, there is a note following the subsection to the effect that this does not apply in relation to an application to appeal from an unfair dismissal decision (see s.400).

[26] The effect of s.400 is twofold. Firstly, the Commission may only grant permission to appeal from an unfair dismissal decision where it considers it is in the public interest to do so (s.400(1)). Secondly, an appeal of an unfair dismissal decision, to the extent that it is an appeal on a question of fact, may only be made on the ground that the decision involved a significant error of fact (s.400(2)).” 25 [Citations removed]

[55] We adopt this approach.

Grounds for appeal

[56] The Appellant argues that the Commissioner erred in her ultimate finding on the following grounds (somewhat re-ordered from their original expression):

1. The Commissioner erred in finding that the direction of the Respondent that the Appellant attend a medical assessment on 17 April 2013 was lawful;

2. The Commissioner erred in finding that the direction of the Respondent that the Appellant attend a medical assessment on 17 April 2013 was reasonable;

3. The Commissioner erred in finding that the Respondent had a valid reason for terminating the employment of the Appellant for refusing to attend a medical assessment on 17 April 2013;

4. The Commissioner failed to take into account the relevant consideration that the Appellant had disputed the lawfulness and reasonableness of the Respondent’s direction that he attend a medical appointment under disputes procedure in the BMA Enterprise Agreement 2012 before 17 April 2013 and that dispute had not been dealt with in accordance with the procedure;

5. The Commissioner took into account an irrelevant consideration by relying upon the Appellant’s conduct of seeking to record telephone conversations in circumstances where the Respondent had abandoned any reliance upon that conduct;

6. The Commissioner erred in finding that the Appellant’s conduct in asking to record conversations undermined the employment relationship in the obligation of mutual trust and confidence;

7. The Commissioner erred in failing to take into account the reasons that the Appellant requested that he be provided with the questions he was to be asked in a disciplinary interview;

8. The Commissioner erred in taking into account an irrelevant consideration by relying upon the Appellant’s attendance at the mine on to April 2013;

9. The Commissioner erred in taking into account an irrelevant consideration that the Appellant’s claim under the Workers Compensation and Rehabilitation Act 2009 included a claim concerning permanent impairment;

10. The Commissioner erred in finding that the claim concerning permanent impairment meant that the Appellant was not fully fit to return to the workplace

Appeal Grounds 1 and 2: The Commissioner erred in finding that the direction of the Respondent that the Appellant attend a medical assessment on 17 April 2013 was lawful and reasonable

Lawfulness of direction

[57] In relation to these grounds, the Appellant contends that the Commissioner wrongly determined that the direction to attend a medical practitioner given to the Appellant by the Respondent was lawful.

[58] The Appellant contends that the direction given by the Respondent was not available as a matter of law and the Respondent was not able, as a consequence, to direct the Appellant in the relevant matter by way of a contractually-derived command. This was because there was no necessary basis on which to imply a further term into the contract of employment because the rights afforded under the employment relationship, the relevant statutes (the CMSH Act and Coal Mining Safety and Health Regulation 2001 (Qld) (“CMSH Regulation”)) and the BMA Enterprise Agreement 2012 (“the Agreement”) covered the field.

[59] The Appellant considered that the Respondent’s direction that the Appellant attend on a medical practitioner was, for the reasons stated, neither lawful nor reasonable because the direction did not conform to the health assessment command that the Respondent could lawfully issue under the industry specific legislative framework embodied in the CMSH Act and the CMSH Regulation.

[60] The Appellant contended that one of the objects of the CMSH Act is “providing for the health assessment of coal mine workers”. The legislative framework, it was said, is for the purposes of limiting the risk of harm to employees and others at coal mines to an acceptable level, but does not require an absolute standard of risk management (such as guaranteeing safety and health of those concerned).

[61] It was further contended that the CMSH Act sets out the way that an acceptable level of risk may be managed by way of a prescribed process under the CMSH Regulation.

[62] The Appellant argued that in respect of health assessments of coal mine workers the object of the Act referred to above is to be achieved by two prescribed processes. The first of these was a health assessment of a worker's physical or psychological impairment as provided for by a physical and psychological impairment protocol established under the mine safety and health management system (under s.42 of the CMSH Regulation) and as authorised in the manner set out in Chapter 2 Part 6 (Fitness for Work) Division 1 (General).

[63] The method of authorisation of such a protocol is contingent upon the support of a majority of the coal mine workers. The obligation falls upon the senior site executive (SSE) to implement such a protocol.

[64] A further method of achieving the relevant object of the Act is by way of chapter 2 Part 6 (Fitness for Work) Division 2 Subdivision 3 (Health Assessments and Health Monitoring) and in particular s.46 of the CMSH Regulation.

[65] The Appellant contended that there are no other means of managing the relevant risks other than through these two avenues as set out in the CMSH Regulation. So far as the Respondent sought to rely upon s.39(c) of the CMSH Act it was in error because such “general” provisions are set aside by the specific provisions of the Regulation. It is only by the specific provisions of the Regulation that the Respondent is authorised to request the Appellant to attend a medical examination.

[66] The Respondent does not have a physical or psychological impairment (“PPI”) protocol in place that is authorised in a manner required by the CMSH Regulation (which requires the consent of a majority of employees).

[67] The Respondent cannot therefore rely upon such a protocol for purposes of directing an employee to attend upon a medical practitioner. That is, the Respondent did not invoke Chapter 2 Part 6 (Fitness For Work) Division 2 of the CMSH Regulation. The Commissioner's decision did not rely upon it, either.

[68] It was also argued that the Respondent had no implied contractual power to direct the Appellant to undertake a medical assessment.

[69] Thus the Appellant argues that issues about fitness for work are resolved through the regulatory mechanisms and not through “some general obligation of persons under s.39(c)” of the CMSH Act. 26 The Appellant therefore contends that there was no statutory basis for the direction to attend at a medical practitioner to determine fitness for work; there was no necessity for a term to be implied into a contract of employment; and no other power arose from the operation of the applicable Agreement.

[70] The Appellant considered this reasoning to reflect the conclusion reached by Her Honour Justice Atkinson in Edwards v North Goonyella Coal Mines Pty Ltd (“Re Edwards”).  27 In this case the employer sought to require an employee to undergo an additional medical examination and sought from the Court a declaration that it had had a power to direct an employee to do so. Atkinson J found:

“[33] The employer does have the power to provide for assessments for physical or psychological impairment in fitness provisions developed under s 42(6). However North Goonyella has not developed any relevant fitness provisions. If it had, there may have been the power to make the direction it did. Absent that, there is no power found in the Regulation for the employer to require a coal mine worker to undergo further medical tests.” 28

[71] The Appellant also relied upon the judgement of Justice McMeekin of the Supreme Court of Queensland in M v P, who observed that: 29

“[71] The decision in Edwards is to the effect that the employer at least one governed by the provisions of the Act has no other right to insist on any medical examination [...].”

[72] The Appellant also took the bench to the judgement of the Court of Appeal of the Supreme Court of Queensland in Mattson v Parker, 30 where the Court, in upholding the appeal in M v P,31 stated that:

“[52] The Regulation provides for a coal mine safety and health management system to include risk identification and assessment; hazard analysis; and management control. Its pt 6 deals with fitness for work in coal mines. Chapter 2 pt 6 div 1 is concerned to limit the risk of workers endangering themselves or others at coal mines whilst under the influence of alcohol or drugs or through other physical and psychological impairments. All this makes clear that the Act and regulation have the commendable purpose of limiting the risk of harm to those at coal mines to an acceptable level. This is to be achieved by ways of including health assessment of workers aimed at detecting, relevantly, workers physical impairments with the potential to cause injury to the workers or others at the coal mine.” 32

Commissioner’s decision

[73] The Commissioner found that the Respondent has a right to direct the Appellant to attend a medical appointment for the purposes of demonstrating his fitness for work with the Respondent not by way of a contractual term, but because of the scope of power under s.39 of the CMSH Act, which included the power, in the case of Mr Grant, to require him to attend a medical practitioner nominated by the Respondent.

[74] The argument here, in essence, is that s.39(1) of the CMSH Act empowers the Respondent to take reasonable steps to ensure that an employee was not exposed to an unacceptable level of risk in the workplace. This was the critical finding by the Commissioner, and that finding is pivotal to this appeal.

[75] Section 39(1) of the CMSH Act provides as follows:

39 Obligations of persons generally

(1) A coal mine worker or other person at a coal mine or a person who may affect the safety and health of others at a coal mine or as a result of coal mining operations has the following obligations—

(a) to comply with this Act and procedures applying to the worker or person that are part of a safety and health management system for the mine;

(b) if the coal mine worker or other person has information that other persons need to know to fulfil their obligations or duties under this Act, or to protect themselves from the risk of injury or illness, to give the information to the other persons;

(c) to take any other reasonable and necessary course of action to ensure anyone is not exposed to an unacceptable level of risk.

(2) A coal mine worker or other person at a coal mine has the following additional obligations—

(a) to work or carry out the worker's or person's activities in a way that does not expose the worker or person or someone else to an unacceptable level of risk;

(b) to ensure, to the extent of the responsibilities and duties allocated to the worker or person, that the work and activities under the worker's or person's control, supervision, or leadership is conducted in a way that does not expose the worker or person or someone else to an unacceptable level of risk;

(c) to the extent of the worker's or person's involvement, to participate in and conform to the risk management practices of the mine;

(d) to comply with instructions given for safety and health of persons by the coal mine operator or site senior executive for the mine or a supervisor at the mine;

(e) to work at the coal mine only if the worker or person is in a fit condition to carry out the work without affecting the safety and health of others;

(f) not to do anything wilfully or recklessly that might adversely affect the safety and health of someone else at the mine.

[76] As mentioned above, the Commissioner relied upon these provisions (and particularly s.39(1)(c) of the CMSH Act) as establishing a duty, or expressing an implied grant of power to the Respondent to ensure that workers are not exposed to unacceptable levels of risk. That is, the Commissioner accepted the Respondent’s argument that it had a power to effect a course of action in order to discharge the relevant statutory duty, which in this case led the Respondent to require the Appellant to undergo a functional assessment before recommencing duties within the coal mine.

[77] The Appellant contends that the direction given to him to attend a medical assessment was not lawfully available to the Respondent in the context of the industry specific legislative framework or scheme found in the CMSH Act and the CMSH Regulation.

[78] Before reviewing the ground of appeal, we firstly set out the wider relevant provisions of the CMSH Act and the CMSH Regulations.

[79] Section 42 of the CMSH Act provides as follows:

42 Obligations of site senior executive for coal mine

A site senior executive for a coal mine has the following obligations in relation to the safety and health of persons who may be affected by coal mining operations—

(a) to ensure the risk to persons from coal mining operations is at an acceptable level;

(b) to ensure the risk to persons from any plant or substance provided by the site senior executive for the performance of work by someone other than the site senior executive's coal mine workers is at an acceptable level;

(c) to develop and implement a single safety and health management system for all persons at the mine;

(d) to develop, implement and maintain a management structure for the mine that helps ensure the safety and health of persons at the mine;

(e) to train coal mine workers so that they are competent to perform their duties;

(f) to provide for—

(i) adequate planning, organisation, leadership and control of coal mining operations; and

(ii) the carrying out of critical work at the mine that requires particular technical competencies; and

(iii) adequate supervision and control of coal mining operations on each shift at the mine; and

(iv) regular monitoring and assessment of the working environment, work procedures, equipment, and installations at the mine; and

(v) appropriate inspection of each workplace at the mine including, where necessary, pre-shift inspections.

[80] Section 42 of the CMSH Regulations provides as follows:

42 Safety and health management system for personal fatigue and other physical and psychological impairment, and drugs

(1) A coal mine’s safety and health management system must provide for controlling risks at the mine associated with the following—

(a) personal fatigue;

(b) other physical or psychological impairment;

Example of other physical or psychological impairment— an impairment caused by stress or illness

(c) the improper use of drugs.

(2) The system must provide for the following about personal fatigue for persons at the mine—

(a) an education program;

(b) an employee assistance program;

(c) the maximum number of hours for a working shift;

(d) the number and length of rest breaks in a shift;

(e) the maximum number of hours to be worked in a week or roster cycle.

(3) The system must provide for protocols for other physical and psychological impairment for persons at the mine.

(4) The system must provide for the following about drug consumption or ingestion for persons at the mine—

(a) an education program;

(b) an employee assistance program;

(c) an obligation of a person to notify the site senior executive for the mine of the person’s current use of medication that could impair the person’s ability to carry out the person’s duties at the mine;

(d) an obligation of the site senior executive to keep a record of a notification given to the site senior executive under paragraph (c);

(e) the following assessments to decide a person’s fitness for work—

(i) voluntary self-testing;

(ii) random testing before starting, or during, work;

(iii) testing the person if someone else reasonably suspects the person’s ability to carry out the person’s duties at the mine is impaired because the person is under the influence of drugs.

(5) The site senior executive must consult with a cross-section of workers at the mine in developing the fitness provisions.

(6) In developing the fitness provisions, the site senior executive must comply with section 10, other than section 10(1)(a) and (d)(ii)(C), as if a reference in the section to a standard operating procedure were a reference to the fitness provisions.

(6A) If the fitness provisions provide for the assessment of workers for a matter mentioned in subsection (1)(a) or (b), the site senior executive must establish the criteria for the assessment in agreement with a majority of workers at the mine.

(7) If the fitness provisions provide for the assessment of workers for a matter mentioned in subsection (1)(c), the site senior executive must make a reasonable attempt to establish the criteria for the assessment in agreement with a majority of workers at the mine.

(7A) If the majority of workers at the mine disagree with the criteria for the assessment under subsection (7), the criteria for assessment stated in a recognised standard apply until an agreement is reached.

(8) In this section—

fitness provisions means the part of the safety and health management system that provides for the things mentioned in subsections (2) to (4).

[81] Section 46 of the CMSH Regulation provides as follows:

Subdivision 3 Health assessments and health monitoring

46 Health assessment

(1) The employer must ensure a health assessment is carried out for each person who is to be employed, or is employed, by the employer as a coal mine worker for a task other than a low risk task.

(2) An assessment must be carried out—

(a) before the person is employed as a coal mine worker; and

(b) if the nominated medical adviser considers the assessment is necessary after being given notice under section 49(3)—periodically, as decided by the adviser; and

(c) otherwise, periodically, as decided by the nominated medical adviser, but at least once every 5 years.

(3) An assessment must be carried out—

(a) in accordance with the instructions, and covering the matters, in the approved form; and

(b) by, or under the supervision of, the nominated medical adviser.

(4) An assessment may include matters not covered in the approved form if, having regard to a risk assessment carried out for a task for which the person is to be employed, or is employed, the nominated medical adviser considers the person needs to be assessed in relation to the additional matters to achieve an acceptable level of risk.

(5) Despite subsection (3)(a), a person may undergo an assessment (a subsequent assessment) in accordance with some of the instructions only, and covering some of the matters only, in the approved form if—

(a) the person has previously undergone a health assessment (a previous assessment); and

(b) the subsequent assessment relates to a matter identified at a previous assessment; and

(c) the assessment is carried out to ensure the person is able to carry out the person’s tasks at the mine without creating an unacceptable level of risk having regard to the matter mentioned in paragraph (b).

(6) A medical examination of the person carried out by a doctor other than the nominated medical adviser is taken to be a health assessment carried out by the nominated medical adviser under subsection (3) if—

(a) the medical examination is carried out under the instructions in the approved form and the nominated medical adviser gives the employer a health assessment report about the examination; or

(b) the medical examination is for other purposes and the nominated medical adviser—

(i) is satisfied the examination is equivalent to a health assessment; and

(ii) gives the employer a health assessment report in the approved form about the examination.

[82] In this case, the Respondent does not rely on the CMSH Regulation. Rather, the Respondent relies upon s.39 of the CMSH Act as imposing a general obligation upon coal mine workers to do what it must to achieve the safety objective.

[83] In Re Edwards the issue before Justice Atkinson concerned the power of the employer to direct further tests pursuant to the Regulation or pursuant to common law rights. That case did not involve detailed consideration of s.39 of the CMSH Act. Her Honour put the matter before her this way:

“[28] The essential issues in this dispute concern the question of whether or not North Goonyella, as employer, can direct Mr Edwards, as employee, to undergo the further tests pursuant to the Regulation or pursuant to the rights of an employer in general. The first question involves a close textual analysis of the Regulation and the second an examination of common law rights of employers and employees to the extent that they survive the Act and Regulation.” 33 [Our emphasis]

[84] The unavailability of a power to direct an employee to undergo a medical assessment was considered in the context only of the protocol established in accordance with the CMSH Regulation, and as previously noted it was concluded that:

“The employer does have the power to provide for assessments for physical or psychological impairment in fitness provisions developed under s 42(6). However North Goonyella has not developed any relevant fitness provisions. If it had, there may have been the power to make the direction it did. Absent that, there is no power found in the Regulation for the employer to require a coal mine worker to undergo further medical tests.” 34[Our emphasis]

[85] And equally so, Her Honour found that the common law provided no foundation for the employer in the case before her to direct an employee in relation to the steps by which a Nominated Medical Advisor (“NMA”) undertook a health assessment under Division 2 of Part 6 of the CMSH Regulation. This was because the regulatory regime prescribed the forms and procedures that were directly relevant to how such health assessments were to be conducted by an NMA and there was no power to introduce a supplementary procedure.

[86] More specifically, the subject matter of Re Edwards concerned a situation in which the relevant employee had undertaken a statutory periodic health assessment under Part 6 of the CMSH Regulation. The issue in contest arose when the employer sought to direct the employee to undertake a supplementary medical assessment upon receipt of the NMA’s medical assessment report, which raised certain issues in relation to the employee’s health. Various declarations were sought in relation to that power. Those declarations all concerned Division 2 of Part 6 of the Regulation and related to the means of conducting a health assessment in the context of the role of an NMA, and the applicable forms and powers available in respect of that matter.

[87] The judgment referred to s.39 of the CMSH Act. Following a discussion of the obligation on the part of a senior site executive to ensure that the risk to a person from coalmining operations is at an acceptable level and under s.42(c) of the CMSH Act to develop and implement a safety and health management system for the mine, Atkinson J stated as follows:

“[18] The coal mine workers in turn have obligations pursuant to s.39 of the Act to comply with the Act and procedures applying to the worker that are part of a safety and health management system for the mine. If the coal mine worker or another person has information that other persons need to know to fulfil their obligations or duties under the Act, or to protect themselves from the risk of injury or illness, a person must give the information to the other persons. A coal mine worker or other person at a coal mine is obliged to comply with instructions given for safety and health of persons by the coal mine operator or SSE for the mine or a supervisor at the mine; and to work at the coal mine only if the worker or person is in a fit condition to carry out the work without affecting the safety and health of others.” 35

[88] For these reasons we do not consider the judgment in Re Edwards to be applicable to a consideration whether s.39 of the CMSH Act empowers an employer to require an employee to undertake a medical assessment. The judgment in Re Edwards arguably stands for propositions relevant to Division 2 of Part 6 of the CMSH Regulation, but not to the power available to give effect to an obligation under s.39 of the CMSH Act.

[89] We also observe that the judgments of the Court in M v P and Mattson v Parker, referred to earlier, did not consider s.39 of the CMSH Act itself, but, following a discussion of the duties that fell upon a SSE under the CMSH Act and the CMSH Regulation, went on to state that:

“The worker too has obligations and relevantly under s.39(e) of the Act, “to work at a coal mine only if the worker or person is in a fit condition to carry out the work without affecting the safety and health or others.” 36

[90] The judgment in Mattson v Parker (as in Re Edwards) concerned the process by which health assessments are carried out under Chapter 2 Part 6 Division 2 of the CMSH Regulation (s.46). The dispute with which these decisions were concerned was about the circumstances relating to Chapter 2, Part 6 Division 2 of the CMSH Regulation, which dealt with the manner of the performance of a health assessment by a NMA, under the prescriptions set out under that Division.

[91] The critical issue was whether the medical practitioner (the NMA) concerned carried out the relevant medical assessment in accordance with the prescriptive procedures and on the basis of the matters on the approved form as required. The issue before the Court did not attract a consideration of s.39 of the CMSH Act as such.

[92] As we have stated earlier, we do not consider that the judgment in Re Edwards provides authority for the proposition, pressed on us by the Appellant, that the CMSH Regulation was the sole source of statutory authority governing the circumstances in which an employer may direct an employee to undertake a medical examination on a reasonable basis. The judgment in Re Edwards does not reflect a considered examination of s.39 of the CMSH Act, let alone a consideration of any power to instruct that might repose therein; the inquiry conducted by the court was for other purposes.

[93] Nor do we think, as we have stated above, that the judgment in Re Edwards stands for any proposition that denies the Respondent the power to direct an employee to do such things that are not unlawful and which fall within the scope of the employment contract, all other things being reasonable.

[94] We think, further, that s.39 of the CMSH Act, in requiring coal mine workers and other persons at a coal mine “to take any other reasonable and necessary course of action to ensure anyone is not exposed to an unacceptable level of risk”, imposes an obligation in wide terms on the relevant persons (conditioned by reasonableness and necessity) to do all things necessary to ensure that no one at a coal mine is exposed to an unacceptable risk. The CMSH Act at s.39 is couched in broad terms and applies to a broad cohort.

[95] This contrasts with s.42 of the CMSH Act, which places specific obligations on senior site executives not only to do various things, including under s.42(a) to ensure the risk to persons from coal mining operations is at an acceptable level, but also under s.42(c) to develop and implement a single safety and health management system (which is the subject of s.42 of the CMSH Regulations).

[96] The construction we prefer is also reflective of the approach of the Full Bench in CFMEU v MacMahon Contractors Pty Ltd, 37 when it concluded that s.42 of the CMSH Regulation pointed to the obligations that were imposed on Senior Site Executives and which did not otherwise limit obligations arising under s.39(1) of the CMSH Act:

“[18] Regulation 42 is concerned with the content of a Safety and Health Management System (SHMS) and how criteria for “fitness provisions” in an SHMS are to be established. The obligation to develop an SHMS is cast on the Senior Site Executive. A coal mine operator must ensure that the Senior Site Executive develops and implements an SHMS. A contractor, like Macmahon, has an obligation to ensure that any applicable SHMS is complied with. However, such a contractor also has the obligations falling on persons generally, including the obligation in s.39(1)(c) of the CMSH Act:

to take any other reasonable and necessary course of action to ensure anyone is not exposed to an unacceptable level of risk.” 38

[97] We think s.39 of the CMSH Act imposes a broad obligation and we do not consider that obligation in its breadth is overridden by or otherwise confined in the manner contended by the Appellant: it remains a source of a statutory obligation that falls upon a wide cohort of workers and other persons, being a:

“coal mine worker or other person at a coal mine or a person who may affect the safety and health of others at a coal mine or as a result of coal mining operations.”

[98] By contrast, s.42 of the CMSH Act imposes a particularised obligation upon the SSE, which in large measure (but not comprehensively) is given effect through s.42 of the CMSH Regulation.

[99] And similarly, s.46 of the CMSH Regulation (as set out above) imposes an obligation upon the “employer” (but only in relation to health checks for particularised purposes).

[100] The regime for medical assessments as provided for in s.46(2) can only be carried out at prescribed times and in the prescribed manner. In our view, to restrict the manner of responding to a concern about the fitness for work of a coal mine worker to the confined procedures and circumstances set out in s.46 of the CMSH Regulation, would be counter to the objectives of the CMSH Act. It would also be inconsistent with the obligations placed on the employer by s.39 of the CMSH Act.

[101] Generally, we do not view s.39 and s.42 of CMSH Act and s.42 and s.46 of CMSH Regulation to be conflicting, or that one should override the other. Rather, they appear readily able to work conformably with one another to achieve the objects of the Act - which seek to ensure those who work in coal mines are not exposed to an unacceptable level of risk.

[102] It follows from the above discussion, therefore, that we do not think that the proposition (pressed upon us by the Appellant) that s.39 of the CMSH Act, and s.39(1)(c) in particular, must give way to s.42 and s.46 of the CMSH Regulation for reason of the rule or principle generalia specialibus non derogant, has application in the circumstances before us. The various provisions discussed above are not in conflict or otherwise irreconcilable (see Purcell v Electricity Commission of NSW).  39

[103] Further, s.39(1) of the CMSH Act, subject to the conditions of reasonableness and necessity, obligates a coal mine worker or other person (as described) to take “any [...] other course of action” to achieve the objective cited above beyond those actions stipulated in s.39(1)(a) and s.39(1)(b) of the CMSH Act. We do not consider that an obligation of such broad remit should be read down against the terms of the CMSH Regulation in the manner contended by the Appellant.

[104] It also appears to us that s.39(2)(d) of the CMSH Act also imposes on a coal mine worker and other persons at a coal mine an additional and complementary obligation to that imposed by s.39(1)(c) of the CMSH Act:

(2) A coal mine worker or other person at a coal mine has the following additional obligations:

(d) to comply with instructions given for safety and health of persons by the coal mine operator or site senior executive for the mine or a supervisor at the mine;

[105] Mr Gustafson, we point out, was at all times the Appellant’s supervisor, and the instructions he gave the Appellant, who was a coal mine worker, concerned the Appellant’s safety and health.

[106] We add finally that the Respondent had not at any time promulgated under the terms of s.42 of the CMSH Regulation a safety and health management system that had achieved the support of at least a majority of employees at the mine.

[107] In our view, absent such an approved system, the Respondent would remain obligated under the CMSH Act, and otherwise, to take what reasonable steps are necessary to minimise risk to coal mine workers.

[108] It was also pressed on the Full Bench by Counsel for the Appellant that there was no lawful basis on which to direct the Appellant to attend the medical practitioner for a functional assessment. We have referred to this above in passing. Essentially, the Appellant contends that there must be a discernible, positive rule of law supporting Mr Gustafson’s direction and in the absence thereof his direction was unlawful.

[109] As we have said above, we are of the view that Mr Gustafson’s direction was supported by a positive rule of law. But regardless of that, we do not conclude that Mr Gustafson’s direction was illegal (or unreasonable) as a consequence or that the Appellant should not have followed that direction or had a right to refuse to do so.

[110] This is because a direction given to an employee is lawful to the extent that it falls reasonably within the scope of service of the employee.

[111] Counsel for the Respondent took the Full Bench to various authorities in this respect, one of which was the judgment in R v The Darling Island Stevedoring and Lighterage Company Limited; Ex parte Halliday and Sullivan. 40

[112] In his judgment in that case, Justice Dixon considered the circumstances relating to an alleged breach of an award where employees refused to carry out an instruction as to the quantity of cargo to be manually lifted onto a motorised sling for the purpose of loading a vessel. The employees complained that the quantity of cargo was excessive and caused undue strain. In the course of determining the matter, the Court turned its mind to the ‘standard test’ by which the common law determines the lawfulness of a direction given by an employer to an employee. In this context, Dixon J stated:

“It is evident that the plan upon which these provisions proceed is to require that work shall go on in accordance with the employers’ directions notwithstanding an objection to the quantity or weight placed in a sling and that the objection shall be dealt with by a readily accessible tribunal. But the award could not safely, or, at all events, fairly impose upon the employees an obligation to obey all instructions given by employers with reference to the quantity or weight to be included in a sling whatever their character. Some qualification or restriction was necessary. Naturally enough the award adopted the standard or test by which the common law determines the lawfulness of a command or direction given by a master to a servant. If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable. Accordingly, when the award was framed, the expression “reasonable instructions” was adopted in describing the employee's duty to obey. But what is reasonable is not to be determined, so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled. When an employee objects that an order, if fulfilled, would expose him to risk, he must establish a case of substantial danger outside the contemplation of the contract of service.” 41 [Our emphasis]

[113] The Respondent also took us to a Federal Court authority (McManus v Scott Charlton) 42 which provided supportive, contemporary comment upon what Dixon J referred to (above) as the “standard test”.

[114] Notwithstanding our finding that Mr Gustafson’s direction was supported by a positive law, we also find that his direction to the Appellant fell within the scope of his contract of service and was otherwise not unlawful, and was reasonable in the circumstances (as we set out in this decision). We do not read the CMSH Regulation as making Mr Gustafson’s direction unlawful, such that it was never permissible for him to issue the relevant instruction to the Appellant.

[115] In all, we agree with the Commissioner in her summation that:

“The legislation does not provide an impediment, to limit when an employer may otherwise lawfully direct an employee to attend upon a medical assessor, where reasonable concern exists for ensuring the employee is medically fit to return to his duties at the mine.” 43

[116] The Appellant, we add, also argued that s.39(1) of the CMSH Act only has application in circumstances where the conduct in question arises in the physical confines of the coal mine and not otherwise. In this regard, s.39(1) of the CMSH Act provides as follows:

(1) A coal mine worker or other person at a coal mine or a person who may affect the safety and health of others at a coal mine or as a result of coal mining operations has the following obligations—

[117] According to the argument before us, s.39(1) of the CMSH Act is geographically limited in its scope of application. Counsel for the Appellant put the matter this way:

“The difficulty amongst others with relying upon 39(1)(c) is that no attention has been given to some statutory prerequisites which appear in the opening two lines of subsection (1). It appears everyone so far has ignored where it makes reference to the expression "at a coal mine". That expression appears in the first alternative of a coal mine worker or other person at a coal mine. It then also appears in the second alternative where, "a person who may affect the safety and health of others at a coal mine.

The Act contains a definition of what is a coal mine. That definition can be found in section 9 at page 18. It suffices for present purposes to submit that Mr Grant, the Appellant, sitting in a car at Mackay deciding whether or not he should go into see the employer's nominated doctor is not at a coal mine. Mackay has nothing to do with what section 39(1) in its opening prerequisites states.” 44

[118] As we have found above, we do not consider that the power to issue a direction that was lawful and reasonable is limited to the extent it is founded on a positive rule of law, or an express statutory provision as in this case.

[119] That said, we think the construction of s.39(1) of the Act is intended to do no more than identify the classes of employees on whom an obligations falls. It does not, without undue straining, appear to impose a geographical or physical limitation to the circumstances in which the articulated obligations under either s.39(1) or s.39(2) of the CMSH Act are operative.

[120] We do not read s.39 of the CMSH Act, therefore, as meaning that the conduct of the Appellant in failing to carry out a direction by his supervisor under s.39 of the CMSH Act can only fall into question when that conduct takes place within the geographical confines of a coal mine and not anywhere else (despite that conduct having consequences for and having arisen because of a direction issued about a concern over safety and health of others at a coal mine).

[121] The determinative issue, in our view, is whether the matter is a consequence of or has consequences for the obligations flowing from s.39 of the CMSH Act in relation to a coal mine. We consider s.39 of the CMSH Act, as a matter of construction, should not be narrowly read (or geographically confined) in this regard. Indeed, to read down s.39 of the CMSH Act in this way would be to limit the scope of action that must be taken by a coal mine worker to ensure anyone at a coal mine is not exposed to an unacceptable level of risk.

Reasonableness of direction

[122] As we have mentioned earlier, the Commissioner found that Mr Gustafson was lawfully permitted by s.39 of the CMSH Act (so far that such a direction must be expressly founded upon a positive rule of law) to direct the Appellant to attend a medical examination for a functional assessment when he presented for work.

[123] The Commissioner found this direction to be reasonable after a very lengthy absence from the workplace, following surgery, and with only generalised medical certificates (which did not refer to surgery having taken place and were absent any information about any rehabilitation). There was no evidence before Mr Gustafson, or the Commissioner, that the Appellant had undergone a functional assessment upon seeking to resume work.

[124] The Appellant’s injury was known to be exposed to aggravation. The Appellant’s “role involved heavy manual tasks”. 45 Further, the Appellant had expressed a willingness to attend a medical practitioner of his own choice for purposes of a functional assessment.

[125] This, generally, was the context in which the Commissioner reached her findings as to the reasonableness of the instruction (to attend a medical practitioner for the purpose of a functional assessment) given to the Appellant:

“Given the nature of the [Appellant’s] medical history and the fact that the [Appellant] had had shoulder surgery and rehabilitation, the Respondent had reasonable cause to satisfy itself that the [Appellant] could safely perform his duties and would not expose anyone to an unnecessary level of risk.” 46

[126] Mr Gustafson acted reasonably, the Commissioner concluded, in requesting the Appellant to undertake a functional assessment in such circumstances. Mr Gustafson directed the Appellant to attend on a medical practitioner who was a trained occupational physician with knowledge of the mining industry and the Respondent’s operations.

[127] There is no evidence overlooked by the Commissioner to the effect that Mr Gustafson exhibited any predetermined view of the Appellant’s state of health or revealed any malevolent intent in directing the Appellant to undertake the assessment. The Appellant was placed him on full pay in the interim period (whilst the functional assessment confirmed the Appellant’s fitness for work).

[128] We add that the Commissioner also had before her a statutory declaration signed by the Appellant in which the Appellant had, for purposes of a claim for damages under WorkCover, declared he had a 20% permanent impairment arising from his shoulder injury.

[129] Generally, we are of the view that the Commissioner’s findings were open to her.

Conclusion in respect of Appeal Grounds 1 and 2

[130] In respect of Appeal Grounds 1 and 2, we discern no error in the Commissioner’s evaluation of the circumstances such that it is objectively wrong, or otherwise invites the Full Bench to substitute its own evaluation. The Commissioner properly construed the power available under CMSH Act for the Respondent to direct the Appellant on reasonable grounds to attend a functional assessment. We also consider, in any event, the Respondent was able to direct the Appellant to do such things that are not unlawful, and which are reasonable and properly an incident of the employment relationship, or fall within the scope of the contract for service. We have also found that the Respondent’s direction to the Appellant can be so characterised.

Appeal Ground 3: The Commissioner erred in finding that the Respondent had a valid reason for terminating the employment of the Appellant for refusing to attend a medical assessment on 17 April 2013

[131] The Appellant contended that there was no valid reason for the dismissal for the added reason that the conduct of the Appellant did not warrant dismissal. The Appellant argued that the Respondent had never articulated to the Appellant the basis of its direction for him to attend a medical appointment and that the Appellant could not be said to have acted unreasonably because he did not wish to be examined by a doctor chosen by the Respondent.

[132] The evidence before the Commissioner, it was said, was that the Appellant had agreed to reschedule his medical appointment upon the suggestion of Dr McCartney, and by misfortune alone was not advised of the rescheduled appointment in advance.

[133] The Appellant also contended that the Commissioner had relied upon evidence that the Appellant had sought to record conversations without the consent of the individuals concerned on various occasions since his return to work on to April 2013.

[134] The Appellant argued that this was a factual error. The Appellant had sought the consent of all persons with whom he spoke to record the conversation. The only exception was the second telephone call with Dr McCartney (who had consented to the conversation being recorded by the Appellant in their discussion immediately prior telephone conversation, which concerned rescheduling the medical appointment). There is no evidence that Dr McCartney had complained about the recording of any conversation, even though he had opportunity to do so (given that he was in communication with the Respondent’s HR Department).

[135] It was further argued by the Appellant that there were no grounds for a finding of misconduct in the manner in which he had behaved during the single investigation meeting on 22 April 2013. The Commissioner, it was suggested, had failed to take into account the Appellant’s reasons for not replying to his employer’s questions without those questions having been placed firstly in writing.

Whether there was a valid reason for dismissal

Medical appointments

[136] We do not think that the Commissioner erred in the conclusion that there was a valid reason for the dismissal of the Appellant. The Commissioner’s conclusion was based on a survey of the conduct of the Appellant.

[137] The Commissioner, having established that there was a lawful statutory basis for the direction to attend a medical practitioner (and that the direction was not unlawful) drew an inference from the evidence before her that the Appellant had wilfully decided not to attend the medical appointments, and did so in circumstances in which he had been warned of the prospect of disciplinary action should he fail to do so.

[138] The Appellant also conceded under cross examination that he was unwilling to attend the Respondent's medical practitioner:

You were unwilling to have what you described as a company doctor perform that assessment. Correct? -- That’s correct.  47

[139] The wider evidence before the Commissioner suggested that the Appellant could have attended the initial appointment without the x-rays and scans, and that his explanation for so doing was “contrived”.

[140] Further, the Commissioner found that the Appellant was aware that there was no requirement to bring along the radiological scans at the time he telephoned Mr Gustafson and accused him of neglecting to inform him that he “needed to have x-rays, scans and the like.” 48

[141] It was also open to the Commissioner to find on the evidence that the Appellant was aware of the time of the rescheduled appointment. This was because there were grounds for concluding that the Appellant had informed his CFMEU representative prior to the time of the rescheduled appointment. The Commissioner also accepted Mr Gustafson’s evidence that he instructed the Appellant, after he had not attended the first medical appointment, “not to go anywhere and be expecting a further call”, and reasonably could not have “missed” Mr Gustafson’s call to him about the rescheduled appointment. 49

[142] We are satisfied that the Commissioner’s inference that the Appellant had wilfully elected not to attend the medical appointments was open to her given the evidence before her.

Conduct in interview etc

[143] Similarly, the Appellant's conduct in requiring written questions rather than participating in an interview was a measure viewed by the Commissioner (as we imply from her decision) to disrupt or otherwise delay the Respondent's processes or otherwise was an unconstructive contribution to an ordinary workplace process. The Commissioner found that this “formed part of the valid reason for the dismissal”. 50

[144] It was argued on appeal that the Appellant was not obliged to obey an order which required him to incriminate himself, and otherwise that the Appellant had a penalty privilege.

[145] We were taken in this regard to the case of Hartmann v Commissioner of Police 51 (“Re Hartmann”) where it was said:

“The protection against self-incrimination is intended to protect against any type of punishment or penalty [...] It follows that the privilege against self incrimination exists to protect against the penalty of dismissal from employment, and its financial consequences.” 52

[146] We note firstly that no issue of the Appellant exercising a penalty privilege was before the Commissioner and the issue was not raised in the proceedings before her, which we note were fully argued by competent counsel. No reason was put to us as to why we should consider new arguments of this kind on appeal.

[147] Notwithstanding this, we think that the case in Re Hartmann is distinguishable from the circumstances before us. The central issue in Re Hartmann arose in circumstances in which a person gave evidence that the Royal Commission into the New South Wales Police Service, and his evidence incriminated him and was given unwillingly and under objection. A question arose subsequently whether by s.17(2) of the Royal Commissions Act 1923 (NSW) witnesses are protected from the evidence being used against them in circumstances in which the evidence in the Commission proceedings was admitted into evidence in proceedings before the Government and Related Employees Appeal Tribunal (for the purposes of a police disciplinary hearing).

[148] Furthermore, the case in Re Hartmann dealt with a penalty of dismissal arising from statutory police disciplinary regime; The Police Services Act 1990 (NSW) (“the PS Act”). The PS Act included s.179 which states as follows:

179. (1) if a departmental charge or criminal charge against a police officer is duly proved, the Commissioner may take such action against the police officer as the Commissioner considers appropriate.

[149] Section 179(2) of the PS Act goes onto specify the types of actions the Commissioner may take against a police officer, and these include, at s.179(2)(c) of the PS Act, the imposition of “a fine”. Section 179(3) of the PS Act sets out that “any fine imposed by the Commissioner under this Section may be recovered in a court of competent jurisdiction of the deck to the Crown or deducted from the pay of the police officer in accordance with the regulations.”

[150] On both counts as set out above, the decision in Re Hartmann concerns significantly dissimilar provisions to those which are before us, and on which this matter turns.

[151] We do not think the case in Re Hartmann assists in the circumstances before us in which an employee is required to assist in a workplace investigation.

[152] We do not construe a workplace investigation interview intended to inquire into an employee’s conduct as attracting the application of such principles as asserted. This is particularly so when the single query put to the employee (which in effect was to explain his reason for not attending the medical appointments as directed) was material to the employment relationship.

[153] The Commissioner also considered that the Appellant’s conduct in seeking to gain entry to the mine, when he had been directed to obtain a medical clearance before resuming his duties, also reflected adversely on the Appellant’s approach to his relationship with his employer.

[154] In all, the Commissioner considered a range of evidentiary issues, weighed those matters as a whole in so far as they reflected on and informed the Appellant's conduct, and concluded that there was a valid reason for the dismissal. The matters may have had variable weight in her judgment, and we take the Commissioner’s conclusion at paragraph 129 to reflect that:

“The Commission is satisfied that this refusal to participate in the investigation process formed part of the valid reason for the dismissal.” 53

[155] We do not seek to displace the Commissioner’s reasoning as based on the evidence that was before her. The findings were open to her, and she apportioned relative weight to the matters under consideration. We detect no error in the Commissioner’s approach in this regard.

Appeal Ground 4: The Commissioner failed to take into account the relevant consideration that the Appellant had disputed the lawfulness and reasonableness of the Respondent’s direction that he attend a medical appointment under disputes procedure in the BMA Enterprise Agreement 2012 before 17 April 2013 and that dispute had not been dealt with in accordance with the procedure

[156] It was contended that prior to the time the Appellant was directed to attend an appointment with Dr McCartney, the matter of the power to do so had been put in dispute by the CFMEU, and that the dispute process was ignored by the Respondent. Such conduct warranted “censure” by the Commission, it was claimed. There is argument around whether or not there had been compliance with the disputes procedure such that it could be concluded that the matters were in dispute in a formal sense.

[157] The appeal ground contends that the Commissioner failed to take this matter into account when reaching her ultimate decision.

[158] True it is that the Commissioner’s decision does not refer to the dispute process that appears to have commenced on or about the time the Appellant was directed to attend for a functional assessment. But this does not reflect adversely on her decision. The reason for this is that a dispute application once made - if one had been validly made - does not require the Respondent to abandon or suspend the steps being taken by the Respondent to fulfil its obligation under the CMSH Act by reasonably directing the Appellant to attend for a functional assessment before recommencing his duties.

[159] In any event, the Appellant’s conduct in not attending the initial medical appointment, in accordance with the Respondent's direction, was already manifest by the time the dispute application purportedly was made, and the disciplinary process arose from that conduct. We see no reason why the disciplinary process should have been suspended as a consequence.

[160] In all, we do not think this matter is material to the Commissioner’s decision, and no error arises because she did not refer to it in her findings.

Appeal Ground 5: The Commissioner took into account an irrelevant consideration by relying upon the Appellant’s conduct of seeking to record telephone conversations in circumstances where the Respondent had abandoned any reliance upon that conduct

[161] The Commissioner was obliged to reach her own conclusions as to the nature of the Appellant's conduct, irrespective of the subjective views of either the Appellant himself or the Respondent. Where an employee is dismissed for conduct, the Tribunal must determine for itself whether the alleged conduct occurred (see King v Freshmore Victoria Pty Ltd 54 and Edwards v Giudice):55

“The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”

[162] It was open to the Commissioner to characterise the Appellant’s conduct as she found to be on the evidence that was led, and independent of the parties’ subjective views.

[163] The Commissioner did not accept that the Appellant had recorded conversations without the consent of other persons. She found, instead, that the practice of seeking to record telephone conversations with persons related to the Respondent and that the Appellant allowed a third party to listen into conversation with Mr Gustafson “undermines the employment relationship”. The Commissioner also expressed the view that in this case there was no evidence that the Respondent’s prior conduct warranted such practices.

[164] We see no error in the Commissioner’s approach in this regard. We are also of the view that this matter was not determinative in any event. It was one matter amongst a number the Commissioner considered for the purposes of s.387(h) of the Act, and it was merely described as being “of concern” or “concerning”. We say a little more about this matter immediately below.

Appeal Ground 6: The Commissioner erred in finding that the Appellant’s conduct in asking to record conversations undermined the employment relationship in the obligation of mutual trust and confidence

[165] The Commissioner found the Appellant’s conduct in seeking to record telephone conversations as “concerning”, in the context in which there had been no prior dubious or deceptive conduct on the part of the Respondent that necessitated such a course of action. 56 The Commissioner found that it was also “of concern” that the Appellant had given evidence that “others were able to listen in to conversations he had with Mr Gustafson [...] without his knowledge”.57 The Commissioner accepted expressly that that Appellant had recorded no conversations without consent of the other party. But even taking this into account, the Commissioner found the “conduct undermines the employment relationship and the obligation of mutual trust and confidence.”58

[166] The conduct the Commissioner refers to here is the conduct in seeking to record conversations with supervisors and others where there was no manifest reason for doing so and for allowing others to listen into conversations without acknowledging their presence. She found it to be “concerning”, and as stated immediately above, to undermine trust and confidence.

[167] We consider that it was open to the Commissioner to conclude as she did on the evidence. We also think that the Commissioner considered this “conduct” in the context of a range of other matters for the purposes of s.387(h) of the FW Act, as well as against the finding she had made in relation to a valid reason.

[168] We do not seek to interpose our own view of the evidence that was before the Commissioner. In any event we do not consider the Commissioner’s finding in these regards to have been of determinative weight in her overall evaluation of the Appellant’s conduct. We have said as much above.

Appeal Ground 7: The Commissioner erred in failing to take into account the reasons that the Appellant requested that he be provided with the questions he was to be asked in a disciplinary interview

[169] The Commissioner took the view that the investigation interview was of limited compass (and concerned obtaining an explanation for the failure to attend the medical appointments), there was no pre-prepared list of questions, and that it was reasonable to expect the Appellant to cooperate in the circumstances. This was particularly so as such interviews give rise to additional questions or considerations and the interview was a regular or conventional procedure “to explore the facts or issues in contention”. The Commissioner also took the view that this process was being stymied by the Appellant.

[170] The evidence before the Commissioner was that the Appellant had been informed in writing on 18 April 2013 that he was required to attend an interview on 22 April 2013 concerning:

“[t]he issues surrounding your conduct [relating] to the allegation of your refusal to attend yesterday’s appointment with Dr Robert McCartney.”

[171] It is apparent that the purpose of the meeting could not have been any more straightforward, and the focus of any inquiries could not have been any less unambiguous.

[172] The Commissioner found in this context, consequently, that the “request for every question to be put in writing for [the Appellant] to respond to was improper” in the circumstances, 59 and reflected adversely on the Appellant’s view of the employment relationship

[173] We think this was a conclusion open to the Commissioner, and should not be disturbed. It also was one factor only that the Commissioner took into account the purposes of determining whether there was a valid reason for the dismissal. We add that had the questions being posed had some unusual character or complexity to them it might be reasonable to seek to have a meeting adjourned and the questions or allegations particularised. But this was not the case here where the purpose of the inquiry was very narrow, and clearly articulated to the Appellant in advance of the meeting.

Appeal ground 8: The Commissioner erred in taking into account an irrelevant consideration by relying upon the Appellant’s attendance at the mine on 2 April 2013

[174] We do not believe that the Commissioner erred in taking into account the manner in which the Appellant “simply turned up to the site on 2 April 2013, after a significant period of absence, without any contact being made with the Respondent (other than providing general medical certificate stipulating different time frames with a clearance, or fitness for duty).”  60

[175] The Commissioner clearly viewed the conduct in the wider context in which she had characterised the Appellant's approach to the employment relationship. This included the “questionable” conduct by the Appellant in seeking to gain entry to the hazardous environment of the mine site on 16 April 2013 despite having been directed not to do so (subject to a medical clearance). 61

[176] On a fair reading of the Commissioner’s decision, in any event, we do not think in the overall consideration of the Commissioner that this was a matter that was accorded determinative or significant weight.

Appeal ground 9: The Commissioner erred in taking into account an irrelevant consideration that the Appellant’s claim under the Workers Compensation and Rehabilitation Act 2009 included a claim concerning permanent impairment

[177] It was put to the Commissioner as a matter of submission only that the Work Cover statement of claim - in which the Appellant asserted that he suffered from a 20% permanent impairment of his shoulder arising from an injury which occurred in October 2011 - was a statement and was not evidence of the fact, and that it should not be relied upon as a consequence. The statement had also been made after the dismissal and therefore it was not open to conclude that the Appellant had at all times been so impaired (although it is apparent that the Appellant relied upon the injury occurring in 2011).

[178] We do not think the Commissioner was in error in taking the WorkCover claim into consideration. The Commissioner found the WorkCover statement of claim - which was in the form of a statutory declaration - to have been inconsistent with the Appellant's claims as made during the proceedings that he was fully fit to resume work as to April 2013.

[179] The Commissioner effectively reopened the matter for the purposes of full exploration, but the Appellant provided no further evidence in relation to the claim statement. The Commissioner subsequently inferred “that [t]his evidence in relation to the WorkCover claim would not have assisted his case”. 62

[180] As the Appellant did not take up the option of providing further evidence in explanation of his statement of claim, in the particular circumstances of this matter, it was open to the Commissioner to draw that inference. The subject matter of the WorkCover claim formed part of the total set of circumstances that the Commissioner was entitled to consider in exercising her statutory duty.

[181] We find no error on the part of the Commissioner in the manner in which she considered the WorkCover statement of claim, after such time as she had given the parties the opportunity to present evidence.

Appeal ground 10: The Commissioner erred in finding that the claim concerning permanent impairment meant that the Appellant was not fully fit to return to the workplace

[182] We have commented sufficiently on this matter immediately above.

Disposition of Appeal and Conclusion

[183] The application raises issues of general application for employees in coal mines in coalmining 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. There are also claims that the decision of the Commissioner was not harmonious with a decision of the Queensland Court of Appeal.

[184] In such a context as argued, we consider the public interest justifies granting permission to appeal.

[185] 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. Consequently, we uphold the Commissioner’s decision and dismiss the appeal, for the reasons we have given above.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr B. Docking, Counsel, for the Appellant

Mr I. Neil, Senior Counsel, and Mr S. Meehan, Counsel, for the Respondent.

Hearing details:

Brisbane

2014

1 May

 1   Exhibit 1 at [62].

 2   Exhibit 1 at Annexure DG7.

 3   Exhibit 1 at [99].

 4   Ibid at [106].

 5   Ibid at Annexure DG18.

 6   Ibid.

 7   Ibid.

 8   Darrin Grant v BHP Coal Pty Ltd [2014] FWC 1712 at [96].

 9   Ibid at [112].

 10   Ibid at [112].

 11   Ibid at [117].

 12   Ibid at [123].

 13   Ibid at [125].

 14   Ibid at [126].

 15   Ibid at [127]-[128].

 16   Ibid at [128]-[129].

 17   Ibid at [134].

 18   Ibid at [138].

 19   Ibid at [136].

 20   Ibid at [135].

 21   Ibid at [137].

 22   Ibid at [145].

 23   Ibid at [148].

 24   [2014] FWCFB 2593.

 25   BlueScope Steel Limited v Sirijovski [2014] FWCFB 2593 at [23]-[26].

 26   Transcript of Proceedings, 19 December 2013, at PN1671.

 27   [2005] QSC 242.

 28   Ibid at [33].

 29   [2011] QSC 350 at [71].

 30   [2012] QCA 271.

 31   [2011] QSC 350.

 32   Ibid at [52].

 33   [2005] QSC 242 at [28].

 34   Ibid at [33].

 35   Ibid at [18].

 36   [2011] QSC 350 at [70].

 37   CFMEU v MacMahon Contractors Pty Ltd (PR965459) [2005] AIRC at [18].

 38   Ibid at [18].

 39   (1985) 60 ALR 652 at 657.

 40   (1938) 60 CLR 601.

 41   Ibid at 621.

 42   (1996) 70 FCR 16 at 21.

 43   Darrin Grant v BHP Coal Pty Ltd [2014] FWC 1712 at [106].

 44   Transcript of Proceedings, 1 May 2014, at PN29-30.

 45   Transcript of Proceedings, 20 November 2013, at PN51.

 46   Darrin Grant v BHP Coal Pty Ltd [2014] FWC 1712 at [116].

 47   Transcript of Proceedings, 19 November 2013, at PN 251.

 48   Ibid at [61].

 49   Ibid at [122]-[123].

 50   Ibid at [129].

 51   (1997) 91 A Crim R 141.

 52   Ibid at 148.

 53   Darrin Grant v BHP Coal Pty Ltd [2014] FWC 1712 at [129].

 54   Print S4213 at [24].

 55   (1999) 94 FCR 561 at [6].

 56   Darrin Grant v BHP Coal Pty Ltd [2014] FWC 1712 at [137].

 57   Ibid at [137].

 58   Ibid at [137].

 59   Ibid at [127].

 60   Ibid at [136].

 61   Ibid at [135].

 62   Ibid at [145].

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