Grant, Darrin v BHP Coal Pty Ltd - [2014] FWC 1712

1

Fair Work Act 2009 
s.394 - Application for unfair dismissal remedy

Mr Darrin Grant
v
BHP Coal Pty Ltd
(U2013/10299)

COMMISSIONER SPENCER BRISBANE, 14 MARCH 2014

Application for relief from unfair dismissal - medical injury - direction to attend for 
functional assessment - power to direct - lawful or unreasonable direction

[1] This decision relates to an application filed in the Fair Work Commission (the 
Commission) by Mr Darrin Grant (the Applicant), pursuant to s.394 of the Fair Work Act 
2009 (the Act). The application alleges that the Applicant was unfairly dismissed from his 
employment, by BHP Coal Pty Ltd (the Respondent).

[2] The application was the subject of conciliation before a Fair Work Commission 
Conciliator but was unable to be resolved.

[3] The matter was further allocated to the Commission, as presently constituted, for 
formal Arbitration.

[4] Directions for the filing of material and evidence were issued. Further directions were 
set for the filing of final submissions. The evidentiary case of both parties was heard over two 
days at the Mackay Courthouse. By consent, the matter was relisted for closing submissions 
in Brisbane, after the parties had the benefit of transcript in the matter.

[5] The Applicant was represented by Mr A Slevin, of Counsel, instructed by Mr C 
Newman, Legal Officer of the Construction, Forestry, Mining and Energy Union (the 
CFMEU). The Respondent was represented by Mr S Meehan, of Counsel, instructed by Ms T 
Gillies, Senior Associate of Ashurst Australia.

[6] While not all of the evidence and submissions in this matter have been referred to all 
of such have been considered.

Background

[7] The Applicant was employed by the Respondent as a boilermaker at the Peak Downs 
Mine (the Mine). The Applicant commenced employment on 25 November 2003, and 
continued in such until his dismissal on 17 May 2013. The Applicant was employed for 

[2014] FWC 1712 [Note: An appeal pursuant to s.604 (C2014/3771) was 
lodged against this decision - refer to Full Bench decision dated 17 June
2014 [[2014] FWCFB 3027] for result of appeal.]

DECISION


E AUSTRALIA FairWork Commission




 

https://www.fwc.gov.au/documents/decisionssigned/html/2014FWCFB3027.htm


[2014] FWC 1712

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approximately 9.5 years. At the time of his dismissal the Applicant was an area delegate for 
the CFMEU of the field crew (maintenance) at the Mine.

[8] On or about 21 October 2011 the Applicant sustained an injury to his right shoulder 
while undertaking his duties at the Mine. The Applicant completed light duties for the 
remainder of the shift on this day.

[9] Between October 2011 and July 2012 the Applicant “reinjured” his shoulder on a 
“number of occasions” which the Applicant stated occurred both during, and outside, work 
hours.

[10] In July 2012 the Applicant again reinjured his shoulder while mowing the lawn, 
outside work hours.  Since about 23 July 2012 the Applicant has been on extended sick leave 
while receiving treatment regarding his shoulder injury. After consulting medical specialists,
the Applicant underwent shoulder stabilisation surgery on 12 September 2012. The Applicant 
had not attended at work in the intervening period between 23 July 2012 and 12 September 
2012.

[11] On 27 March 2013 the Applicant stated that he was certified as being fit to return to 
his pre-injury duties. This medical clearance is at the heart of the dispute between the parties 
and is discussed further below.

[12] The Applicant attended at the Mine on 2 April 2013, being his first rostered shift since 
23 July 2012. The events following relate to the matters for determination in this matter. In 
summary, the Respondent alleged that it was not satisfied that the Applicant could return to 
his full pre-injury duties and required the Applicant to attend upon a medical specialist, of the 
Respondent’s choosing. It is this requirement and the action or inactions of the Applicant 
which are relied upon by the Respondent in dismissing the Applicant.

[13] The Applicant and his representatives (the CFMEU) sought information from the 
Respondent (given the Applicant’s medical clearance) as to why further medical information 
was required and what was relied upon to direct the Applicant to attend for further medical 
assessment.

[14] Whilst the interim facts are discussed in detail below, the final result is that the 
Applicant’s employment was terminated by letter of 17 May 2013 (the Termination Letter), 
authored by Mr Andrew Townsend, at the time, Manager Maintenance, BMA Peak Downs 
Mine.

[15] Specifically the Termination Letter stated:

“I have reviewed your responses to the findings of the Company’s investigation and do 
not consider that your explanations are satisfactory.

Specifically, I am of the opinion the findings of the Company’s investigation are 
substantiated and that you:

 Refused to attend your appointment with Dr McCartney at 11.00 am on the 
17th April 2013;








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 Refused to attend your rescheduled appointment with Dr McCartney at 
1.30 pm on the 17th April 2013 after being directed to attend and warned 
that your failure to attend would result in disciplinary action;

 On numerous occasions since 2nd April 2013 you have sought to record 
conversations, without the consent of the individuals concerned;

 Refused to cooperate and participate during an investigation interview on 
the 22nd April 2013 into your refusal to attend the appointments with Dr 
McCartney, failed to treat Mr Gustafson with courtesy and respect during 
the interview and displayed an uncooperative attitude and demeanour 
during the interview.”

[16] The Applicant’s employment was terminated with immediate effect.

[17] The Respondent later resiled from relying on the reasons associated with the alleged 
taping of conversations. The Respondent, in closing submissions, did not press its reliance 
upon the PPI in relation to the alleged refusal of the Applicant to attend the appointment with 
Dr McCartney.i

Relevant legislation and initial matters

[18] The application has been made pursuant to s.394 of the Act, which provides as 
follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under 
Division 4 granting a remedy.

Note 1:Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2:For application fees, see section 395.

Note 3:Part 6 1 may prevent an application being made under this Part in relation to a 
dismissal if an application or complaint has been made in relation to the dismissal 
other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3)...”

[19] Prior to considering the merits of the matter the Commission must decide those 
matters prescribed by s.396 of the Act as follows:

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order 
under Division 4 before considering the merits of the application:








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(a) whether the application was made within the period required in 
subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair 
Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[20] There is no dispute that the application was filed within the time period prescribed. 
The Commission’s file indicates that the application was filed on 7 June 2013. The 
originating application, and the subsequent employer’s response, stated that the dismissal took 
effect on 17 May 2013. The application was filed on the 21st day after the date the dismissal 
took effect. The Commission is satisfied that the application was made within the period 
required in s.394(2) of the Act.

[21] The Respondent has not raised any objection to the application on the basis of those 
matters set out in s.396(c) and/or (d) of the Act, being that the dismissal was consistent with 
the Small Business Fair Dismissal Code, or was a case of genuine redundancy. The 
Respondent is not a Small Business for the purposes of the Small Business Fair Dismissal 
Code and therefore cannot rely upon the Code in response to the application. Similarly, the 
Respondent did not rely upon a genuine redundancy in the Applicant’s dismissal. The 
Commission is satisfied that the Small Business Fair Dismissal does not apply and that the 
dismissal was not a case of genuine redundancy.

[22] A person is protected from unfair dismissal, at a time, if that person satisfies those 
matters prescribed by s.382 of the Act, as follows:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment 
with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the 
employment;

(iii) the sum of the person’s annual rate of earnings, and such other 
amounts (if any) worked out in relation to the person in accordance with 
the regulations, is less than the high income threshold.”

[23] There is no dispute between the parties that the Applicant had completed the minimum 
employment period and was either not a high income employee and/or that an enterprise 








[2014] FWC 1712

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agreement, the BMA Enterprise Agreement 2012, applied to the Applicant in relation to the 
employment.

[24] The Commission is satisfied, on that basis, that the Applicant was a person protected 
from unfair dismissal at the time of dismissal.

[25] The Applicant alleged that he has been unfairly dismissed within the meaning of s.385 
of the Act which states as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal 
Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: 
see section 388.”

[26] There is no dispute that the Applicant is a person who has been dismissed. The 
Applicant has alleged that his dismissal was harsh, unjust or unreasonable. In considering 
whether the Commission is satisfied that a dismissal was harsh, unjust or unreasonable the 
Commission must take into account those matters specified by s.387 of the Act, as follows

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or 
unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the 
person’s capacity or conduct (including its effect on the safety and welfare of 
other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason 
related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a 
support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—
whether the person had been warned about that unsatisfactory performance 
before the dismissal; and








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(f) the degree to which the size of the employer’s enterprise would be 
likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource 
management specialists or expertise in the enterprise would be likely to impact 
on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

Summary of evidence and submissions

[27] The Applicant stated that following shoulder stabilisation surgery, performed by Dr 
Cutbush, an orthopaedic surgeon, he commenced a period of “intensive rehabilitation”.ii The 
subsequent rehabilitation that the Applicant undertook was arranged by Dr Peter Bastable, a 
doctor at the Mater Hospital in Mackay. The Applicant stated that he saw Dr Bastable on a 
fortnightly basis. The Applicant also undertook physiotherapy.

[28] The Applicant stated that the focus of his rehabilitation was to return him to his pre-
injury “capacity” and specifically “with an emphasis on performing the heavy tasks of my 
role as a boilermaker”.iii

[29] It is the Applicant’s evidence that during his period of absence he was providing 
medical certificates to the Respondent. Annexed to the Applicant’s statement are 9 medical 
certificates written, primarily, by Dr Bastable, but with one or two by other medical 
practitioners, including Dr Cutbush.

[30] The terms of each certificate, excluding that of Dr Cutbush, are in relatively similar 
terms and stated, for example by referring to the certificate signed 6 February 2013:

“This is to certify that Mr Darrin Grant

is receiving medical treatment for MEDICAL CONDITION

and that he will be unfit to continue his usual occupation / study for the period from

[start date] until [end date] inclusive. It is anticipated that he will be able to start full 
duties from the above final date”iv

[31] The certificate provided by Dr Cutbush, dated 30 April 2013, stated that the Applicant 
“is fit to return to full normal duties as of 30th May 2013”. 

[32] A final medical certificate, signed by Dr Bastable, was annexed to the Applicant’s 
statement.v This certificate stated that the Applicant “is fit to return to his normal duties as 
and from Monday April 1st 2013”. The Applicant stated that he provided this certificate to Mr 
Scott Leggett, Dragline Operator of the Mine but also Secretary/Treasurer of the CFMEU, 
Peak Downs Lodge. The Applicant stated that Mr Leggett advised he would provide the 
certificate to the Respondent “in order to allow [the Applicant] to resume work”.vi








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[33] The Applicant stated that upon attending at the Mine site on Tuesday, 2 April 2013, 
being his first rostered day following receipt of his medical clearance from Dr Bastable, the 
Applicant presented himself to the foreman at site. The Applicant was directed, by the 
foreman, to attend at a particular dragline on the Mine, to perform his duties.

[34] The Applicant has given evidence that, because of the “significant” period of time 
during which the Applicant had not been at the Mine, he was concerned that he would not be 
up-to-date with standard operating procedures (SOPs), which are mandatory training that all 
Coal Mine workers must keep current in order to work on the Mine. The Applicant stated that 
he requested the foreman confirm the currency of the Applicant’s SOPs but this did not occur. 
The Applicant stated that he called Mr William Gustafson, Field Maintenance Superintendent 
at the Mine, to confirm the status of his SOPs.

[35] The Applicant gave evidence of the conversation with Mr Gustafson to the effect that 
Mr Gustafson said to the Applicant that prior to commencing work he would be required to 
see the occupational therapists employed by the Respondent. The purpose of this was, as the 
Applicant stated, indicated by Mr Gustafson, to see if there were any “restrictions” on his 
work capacity. The Applicant stated in his evidence that he responded to Mr Gustafson “Yeah 
no worries. I’ve got a clearance from my doctor”.vii

[36] After consulting the occupational therapists, the Applicant stated that Mr Gustafson 
arrived at the crib room and advised the Applicant as follows:

“We’re gonna need to do a functional assessment test. You will need to see a BMA 
doctor. We don’t know where the doctor is because he covers a distance from Brisbane 
to north of Moranbah. The OT girls are gonna chase him up. The assessment’s part of 
the PPI policy. Don’t ask me what the PPI policy is...”

[37] Following a further exchange the Applicant stated that Mr Gustafson said:

“Well, you can go home if you want to Mackay. We’re gonna send you home on full pay. 
We’ll get in contact with you once we’ve located the doctor.”viii

[38] Following a “friendly exchange” with Mr Gustafson, the Applicant stated he returned 
home. On the same day, later in the afternoon, the Applicant stated he spoke with Mr Leggett.

[39] The Applicant stated that he contacted Mr Gustafson the following day, after an 
unsuccessful attempt late in the afternoon prior to speak with the Respondent’s Human 
Resources representative, to obtain a copy of the PPI policy referred to by Mr Gustafson. The 
Applicant was unable to speak with Mr Gustafson and left a message requesting such to be 
sent to the CFMEU’s office.

[40] The Applicant also called Ms Jo Pearce, Human Resources officer of the Respondent, 
to discuss the matter. The Applicant stated in his evidence that he requested Ms Pearce’s 
consent to record the conversation so that he would have “an accurate record of the 
conversation”.ix Ms Pearce declined this request and the Applicant’s evidence is that he did 
not record the conversation.

[41] The Applicant stated that he requested information from Ms Pearce regarding “who’s 
responsible” for him being sent home the previous day. The Applicant stated that Ms Pearce 








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advised it “needs” to be his Superintendant. It is to be noted that Mr Gustafson was, at the 
time, the Applicant’s Superintendant.

[42] The Applicant advised that he again telephoned Mr Gustafson and asked Mr Gustafson 
for a written reason as to why he was “stood down” and sent home. This is the first time in the 
Applicant’s evidence that the phrase “stood down” is utilised. The Applicant recalled that Mr 
Gustafson referred to his, being Mr Gustafson’s, obligation in ensuring workplace health and 
safety under the Coal Mining Safety and Health Act 1999 (Qld) (the Coal Act).

[43] The Applicant’s evidence is that he recited to Mr Gustafson “clause 18 of Schedule B 
of the Agreement” which only required, for a non-work related injury, a medical clearance 
from the particular employee’s doctor, prior to returning to work. Mr Gustafson responded by 
again referring the Applicant to the obligations under the Coal Act. The Applicant pressed his 
request for “it” in writing. The Applicant’s evidence is that Mr Gustafson did not agree to put
it in writing the matters to which he referred. The evidence of the Applicant included a file 
note of this conversation.x

[44] The Applicant’s evidence is that the day prior to the discussion with Mr Gustafson, 
discussed above, he sent a text message to Mr Gustafson requesting that the PPI policy be 
sent to the CFMEU Lodge with an outline of who had sent the Applicant home, and why.

[45] On 10 April 2013 the Applicant stated he received an email, to his personal email 
address, from Mr Gustafson that attached correspondence, dated 9 April 2013. The Applicant 
stated that this correspondence “directed”xi him to attend a medical appointment on 17 April 
2013. The Applicant complains that this correspondence did not state the basis for such 
direction.

[46] Attached to the Applicant’s statement was a copy of the correspondence. The email 
shows that the date of email is 10 April 2013 at 9:22:34 AM AEST. The email relevantly 
stated:

“As discussed I require you to attend a medical examination so that I can understand 
any limitations with respect to your fitness for work, and how this impacts on your 
ability to perform your substantive position as Mine Employee - Boilermaker at Peak 
Downs Mine.”xii

[47] After setting out the details of the appointment, Mr Gustafson continued:

“I would like to take this opportunity to reinforce that we remain committed and 
focussed 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.”

[48] Mr Gustafson also attached to this email a document being a letter to Dr McCartney, 
with the questions that the Respondent required Dr McCartney to report on.

[49] The Applicant gave evidence that at 10:22am, on 10 April 2013, he received a text 
message from Mr Gustafson advising him that the email, discussed above, had been sent to
this email address. The Applicant stated that he sent two text messages to Mr Gustafson in 
which he stated that the email was not (yet) received and requesting that all correspondence 








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be forwarded to the relevant CFMEU Lodge email address. The Applicant also requested that 
the Respondent no longer use his personal email address for correspondence. The Applicant 
confirmed that all written correspondence should be directed to his representatives at the 
CFMEU Lodge.

[50] Further, at 1:45pm on 15 April 2013, the Applicant stated he again sent a text message 
to Mr Gustafson. This text message from the Applicant confirmed that he had not received the 
letter as yet, and again suggested that it should be sent to the CFMEU Lodge email address. 
The Applicant also reiterated his request for the Respondent to notify him, in writing, of the 
lawful basis upon which they were directing him to attend the medical appointments. The 
Applicant also requested the basis upon which he had been suspended with pay, specifically 
requesting the “[C]lauses” relied upon.

[51] At 2:03pm on 15 April 2013, the Applicant telephoned Mr Gustafson. At the 
commencement of this discussion he requested Mr Gustafson’s consent to recording the 
conversation; Mr Gustafson did not consent. The Applicant stated that he did not record the 
conversation. Again, the Applicant requested that the Respondent provide an explanation of 
the basis upon which they had suspended the Applicant and directed his attendance at a 
medical specialist.

[52] The Applicant’s evidence is that, following discussions with his representatives at the 
CFMEU, he attended at the mine on 16 April 2013 at 6:30am. His attendance was despite the 
fact that the Applicant was on notice that the Respondent had directed him not to attend at 
work, that the Respondent had concerns regarding his fitness for duty and that they had 
requested he undertake a medical assessment.

[53] The Applicant stated that after attending at the mine on this date, and being refused 
entry, he telephoned Mr Gustafson at 7:15am. The Applicant advised Mr Gustafson that he 
was at the gate, but he had been advised that he would not be able to enter site until after his 
medical assessment.

[54] The Applicant stated that at this time he raised with Mr Gustafson that he had not 
received “any paperwork” from the Respondent in relation to the proposed appointment. The 
Applicant conceded in cross-examination that at this time he had received the letter of 9 April 
2013, with the direction to attend the appointment.xiii He requested that Mr Gustafson provide 
him with a copy of the letter and any information required to perform the “functional 
assessment” (which was the purpose of the appointment), so that the Applicant could request 
his personal medical advisors to undertake the assessment. This request was denied by Mr 
Gustafson. The Applicant stated that he again requested the reasons for his current suspension 
and the request for the medical assessment.

[55] On 17 April 2013, at 7:55am the Applicant received a telephone call from the Mr 
Gustafson. The Applicant stated that Mr Gustafson left a message for the Applicant in the 
following terms:

“Yea Darrin, Bill Gustafson, Peak Downs Mine, just making sure that you got that 
direction that you need to attend that medical examination today from the specialist 
we’re flying out from Brisbane. As I previously directed you to on numerous 
occasions. Um if you got any issues, I believe we got some correspondence from 
friends of yours at the CFMEU or whatever but that it’s irrelevant, that’s none of their 








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business. Um yet if you got any issues with attending, that um not just today let us 
know.”xiv

[56] At 8:32am, on 17 April 2013, the Applicant responded by text to Mr Gustafson as 
follows:

“Due to your office number not having a message service no option but to text, I have 
asked on 4 separate occasions asking for a letter stating why I have been stood down 
and under what clause my rep from the CFMEU has emailed HR, I also have some 
questions regarding this BMA doctor appointment.”xv

[57] Mr Gustafson responded to the Applicant via text requesting that the Applicant call Mr 
Gustafson on his mobile if required as he was not in the office at the time. The Applicant 
responded, via text:

“What about my letter Bill??”xvi

[58] After a further exchange of text messages, also regarding the basis for the Applicant’s 
stand down, Mr Gustafson phoned the Applicant at 10:00am on 17 April 2013. The Applicant 
advised Mr Gustafson that he considered the matter in dispute, under the disputes procedure 
within the Agreement. The Applicant’s evidence is that Mr Gustafson left a message on the 
Applicant’s telephone as follows:

“Hey Darrin it’s Bill from Peak Downs again. Hey with regards to your doctor 
appointment I’m going to ask you for the 4th time, we required you to attend so I am 
giving you a directive to attend the doctor appointment at 11 o’clock. Failure to do 
that will be reviewed and considered a failure to comply with a reasonable direction 
um and as far as the disputes go, we have had nothing put into dispute. There is 
nothing in dispute at this stage so I don’t know where you have got that information 
from that is incorrect. Um if you have any other concerns, please call, bye.”xvii

[59] At 10:55am on 17 April 2013, 5 minutes before the scheduled appointment, the 
Applicant contacted Dr Robert McCartney’s office (the doctor who had been requested to 
perform the functional assessment). The Applicant confirmed in cross-examination that at one 
point he was in his car in the carpark of Dr McCartney’s office.xviii The Applicant recorded 
this conversation, seemingly with the consent of the parties, as follows:

“Office: Occupational Health Alliance Michelle speaking.
Grant: Hello Michelle, is that Dr Robert McCartney’s office?
Michelle: Yes.
Grant: Ahh yeah its, I’ve got an appointment with him at 11 o’clock this 
morning, do I have to bring anything along?
Michelle: Um did they request you to bring anything along?
Grant: No, I haven’t been told to bring anything, I’m sorry, I forgot to inform 
you I am just recording this message, have you got a problem with that?
Michelle: No, not at all. Ok just let me check for you because I’m not 100% sure, 
thank you.
Dr McCarney: Hello Rob McCartney Speaking.
Grant: Hello how you going mate?
Doctor: Yea good thanks.








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Grant: it’s Darrin Grant here, were you aware that I was recording this phone 
call?
Doctor: Ahh umm the receptionist has mentioned that to me, yes.
Grant: I am just wondering if I need to bring anything along to my 
appointment?
Doctor: Well I’ve only got a general referral suggesting that I need to do a 
fitness for duty assessment so in doing that I need to get a good understanding, I guess 
of what the medical problem might be, so if you’ve got radiological investigations, x-
rays, CTs or MRIs that are relevant then bringing those along would be good. 
Otherwise apart from that all I need is some photographic ID. That would be good.
Grant: Ok then no worries. Thanks very much.
Doctor: Ok are you going to be here around 11?
Grant: Ahh umm, I could run a little late. If I’m going to be late I will give you 
a call back due to traffic. I’m coming from the other side of Mackay.
Doctor: Ok no problem but if you’re on your way that’s fine, as long as I know 
you’re on your way.
Grant: No worries, thanks very much mate.
Doctor: Ok thank you. Bye.”xix

[60] Why the Applicant waited until 5 minutes before his appointment to confirm this 
requirement is not in evidence.

[61] In any event, the Applicant called Mr Gustafson and left a message as follows:

“Yea, hi Bill, it’s Darrin Grant here and just so you are aware I am recording this 
message I’m leaving mate. I just rang and spoke to Dr Robert McCartney’s secretary 
and Dr Robert McCartney himself on whether I needed to bring anything and 
apparently in your information here, you neglected to let me know that I needed to 
have x-rays, scans and the like so I’m afraid Bill we are going to have to reschedule 
the appointment because I’m sitting outside his office in Paget now and I don’t have 
any of that material with me, so yea sorry mate but you’re going to have to call us 
back and let me know what to do next mate. Bye.”xx

[62] The Applicant then called Dr McCartney again, and after requesting to reschedule the 
appointment, stated as follows:

“Grant: ...I haven’t got x-rays and scans and the stuff you require.
Doctor: Ah well ok. I don’t need them to do it but they make it easier but I can 
always get those reports from the radiologist but it’s up to you if you want to 
reschedule that’s fine you just arrange that to be done.
Grant: Ah yea.
Doctor: But you can come in without them it’s up to you.
Grant: I’d prefer to bring them I think.”xxi

[63] After leaving the appointment the Applicant received a phone call from Mr Gustafson. 
The Applicant stated that Mr Gustafson was “extremely angry”.

[64] At 12:28pm on that day the Applicant sent a text message to Mr Gustafson that stated:








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“Due to the type of phone calls you are making and the amount of calls please direct 
all correspondence to my union rep Scott Leggett to do with this form (sic) now on. 
Thank you signed Darrin Grant”xxii

[65] At some time after this text message, the Applicant did not give evidence as to a 
specific time, the Applicant noticed a voice message from Mr Gustafson that stated:

“Darrin gday it’s Bill Gustafson, Peak Downs Mine. We have just had the doctor that 
you are booked an appointment with today. He has explained to you already that you 
can see him without all the x-rays and the rest of it and he will get them at a later date 
but he is quite willing to see you between 1:30 and 2:30 today so there is no reason 
why you can’t go and see him and failure to comply will result in disciplinary 
action.”xxiii

[66] The Applicant did not attend this further appointment, although the Applicant 
submitted that he did not receive the phone message of Mr Gustafson until after the required 
time. The Respondent submitted otherwise. A definitive finding cannot be made on the 
evidence, however, it is noted that the Applicant was able to give very specific evidence in 
relation to the time of calls and text messages in relation to his other evidence. He conceded 
he did not wear a watch but used his phone. Nothing in the evidence of the calls or messages
demonstrated that the time on the phone was inaccurate.

[67] The Applicant sent another text message to Mr Gustafson, again a specific time has 
not been provided:

“This is a formal letter of request that at 12:28pm I sent you a message that I wish to 
correspond through my rep Scott Leggett and now I find that you have left a phone 
message threatening me. I would ask for your superior to contact me ASAP.”xxiv

[68] Following this time the Applicant made a complaint regarding the conduct of Mr 
Gustafson.

[69] On 18 April 2013, at 2:46pm, the Applicant received a further voice message from Mr 
Gustfason. That message stated:

“Yea hello Darrin it’s Bill Gustafson here. Hey um I require you to meet next week next 
Tuesday 10am at CQU. We’re conducting an investigation into your refusal to attend 
yesterday’s doctor’s appointment that we made for you. You’re entitled to bring an 
employee rep with you if you choose. As of today you are on suspended leave on full 
pay as per until while we can conduct the investigation as per clause 3.7 of the EA. We 
will post a letter containing this information as well today so that should be express 
posted and you will receive it in your mail tomorrow. If you’ve got an questions or 
concerns please ring me ASAP. Thank you. Bye”xxv

[70] At 4:05pm on that day, Mr Gustafson wrote to the Applicant advising that he was 
suspended in accordance with clause 3.7 of the Agreement. 

[71] The Applicant attended the meeting at the time requested. Also in attendance were Mr 
Gustafson, Mr Brad Glenwright, Supervisor Maintenance, and the Applicant’s representative 
Mr Leggett.








[2014] FWC 1712

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[72] A further dispute arose between the Applicant and Mr Gustafson at this meeting. The 
Applicant, through his representative, requested that the Respondent put any questions that 
they required the Applicant to answer in writing. The Applicant refused to answer any 
questions unless they were put in writing. The meeting ended on that basis

[73] On 26 April 2013 the Applicant received further correspondence from the Respondent 
requesting that he attend a further meeting. That correspondence stated:

“This letter is to confirm that, as per my message, I require you to attend a meeting 
with me on Tuesday 30 April 2013 at 10:00am at Central Queensland Office. You may 
bring an employee representative to this meeting. In the meantime, you are instructed 
not to return to any BMA site unless by agreement, and not to discuss these matters 
with other BMA employees.

If you require return transportation between Moranbah and Central Queensland 
Office for the purpose of attending the meeting on 30 April 2013, please let me know 
by 5pm Friday 26 April 2013.

Please be reminded that you are currently on paid suspension in accordance with 
Clause 3.7 of the BMA Enterprise Agreement 2012. As such, you must remain 
contactable (including by phone) and attend any meetings held during your rostered 
shift hours or at another agreed time during this period.”xxvi

[74] At this meeting the Applicant was provided with a show cause notice. The Applicant 
was requested to respond to that notice by 5pm on Friday, 3 May 2013. This correspondence 
is lengthy and it is not necessary to set out in full. However, under the heading “Findings” the 
letter stated:

“I view your refusal to attend the appointment with Dr McCartney, and your refusal to 
participate in the interview with [Mr Gustafson] on 22 April 2013, to be refusals to 
follow lawful and reasonable directions contrary to your obligations as an employee of 
BMA.

I also find that your actions, taping conversations without the consent of other parties, 
undermine the trust and confidence relationship that needs to exist between you and 
BMA.

I have formed the preliminary view that your conduct is in breach of:

 Clause 4.5 of the BMA Enterprise Agreement 2012;
 BMA’s Charter Values of Respect and Integrity; and
 The relationship of trust and confidence that must exist between you and your 

supervisors and co-workers.”

[75] The Applicant responded to the show cause notice on 6 May 2013, in which the 
Applicant maintained that he had not failed to follow a reasonable direction and confirming 
his “understanding” that the direction, to attend upon Dr McCartney, was unlawful and 
unreasonable.








[2014] FWC 1712

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[76] The Applicant attended a further meeting with his support person. The Applicant’s 
employment was terminated during this meeting.

[77] The Applicant submitted that the reasons for dismissal can be classified as three 
allegations: that the Applicant failed to follow lawful and reasonable directions to attend a 
medical appointment; that the Applicant’s conduct during the course of the investigation was 
inconsistent with the expectations for standards of behaviour of all employees; and that the 
Applicant’s alleged taping of conversations without the consent of other parties undermined 
the trust and confidence that needs to exist in an employment relationship.

[78] The Applicant submitted that the only power upon which the Respondent can rely to 
direct the Applicant to attend a medical examination is contractual. The Applicant submitted 
that no term existed; by either express words or by implication. The Applicant referred to 
Blackadder v Ramsey Butchering Services Pty Ltdxxvii which is discussed below.

[79] Mr Gustafson gave evidence on behalf of the Respondent in the matter. Given the 
detail with which I have recalled the Applicant’s evidence it is not necessary to duplicate the 
Respondent’s evidence. The facts of the matter are largely uncontested (except for the 
sequence of events surrounding the appointment with Dr McCartney) and the parties are in 
general agreement about the factual contest; although each says the factual circumstances give 
rise to a different conclusion in this matter.xxviii The Commission has however reviewed all of 
the Respondent’s evidence of this matter.

[80] Mr Gustafson stated that he recalls that in 2011 the Applicant injured his shoulder at 
work. Mr Gustafson gives evidence that at that time the Applicant was “uncooperative and 
did not fully participate in the investigation into why he had suffered his shoulder injury”.xxix

Similarly to the circumstances in this matter Mr Gustafson recalls that the Applicant refused 
to provide a statement in relation to that injury. Mr Gustafson understands that the Applicant 
was issued a Step 2 written warning in early 2012 in relation to having gone missing during 
shift, taking an extended crib break and for refusing to follow a fair and reasonable request 
from his supervisor.

[81] Mr Gustafson also stated that the Applicant had received a Step 3 final warning; also 
in early 2012. This warning was issued because the Applicant left his shift early without 
authorisation. This Step 3 warning, by the time of the circumstances relevant to this matter, 
had downgraded to a Step 2 warning, in accordance with the Respondent’s policy.

[82] The Applicant disputed each of these warnings. The Step 2 Warning was referred to in 
the letter of termination relied upon by the Respondent.

[83] Mr Gustafson stated that the Applicant had returned to work on 2 April 2013, 
attending at the mine with a medical clearance. Mr Gustafson gave evidence that both he, and 
the relevant supervisor, were unaware that the Applicant would be returning at that time.

[84] The Applicant did challenge whether contact was made prior to his return. The 
Applicant relied upon “notice” provided on 28 March 2013. The notice is in an email from Mr 
Leggett to Mr Leith, then Mr Gustafson. This notice however provides no specific detail and 
provides no notice that the Applicant did indeed intend to return on 2 April 2013. The 
“notice” simply attaches another vague medical certificate stating that the Applicant is fit to 
return from 1 April 2013. It is noted that this medical certificate is in different terms to the 








[2014] FWC 1712

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previous certificates but each medical certificate ended with the terms “[I]t is anticipated that 
he will be able to start full duties from the above final date”. This “medical advice” had been 
provided for some 8 months. It is unsurprising therefore that the Respondent did not consider 
this as firm “notice” that the Applicant would be returning on 2 April 2013.

[85] Mr Gustafson telephoned the Mine’s Human Resources staff for advice about the 
Applicant’s return to work. The result, over the coming days, was the direction to the 
Applicant to attend upon the medical appointment, as directed by the Respondent.

[86] The Respondent agreed with the Applicant that the first issue for consideration by this 
Commission was the right of the Respondent to direct the Applicant to attend this medical 
appointment.

[87] The Applicant took issue with the Respondent’s reliance on its PPI policy as a basis 
for this direction. The Applicant submitted that the PPI policy was not compliant with the 
relevant Regulations and therefore, could not be relied upon by the Respondent. The 
Respondent later confirmed that it did not rely upon such, in this matter.xxx

[88] The Respondent submitted that rather than relying upon a contractual right (express or 
implied) to direct the Applicant, the Respondent relied upon s.39 of the Coal Act.  The 
Respondent confirmed that it did not rely upon any contractual right in this matter.

[89] Section 39 of the Coal Act provides:

“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; 








[2014] FWC 1712

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(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.”

[90] The Respondent submitted that s.39(1)(c) of the Coal Act imposes a duty upon coal 
mine workers to ensure that anyone is not exposed to unacceptable levels of risk. Criminal 
offences are created for failure to discharge obligations under the Coal Act.

[91] The creation of the duty was said to be an implied grant of power to the Respondent. 
The Respondent referred the Commission to the decision in Board of Fire Commissioners 
(NSW) v Ardouin.xxxi Kitto J in that matter said, at [10]:

“The section being construed in this manner, the question in the present case is whether 
damage caused by the driving of one of the Board's motor vehicles on a public street 
on the way to a fire is damage caused by an act which, in the absence of negligence, 
would have been within, as distinguished from being incidental to, the exercise of some 
power conferred by a provision other than s. 46. The answer offered by the plea 
demurred to is that ss. 19 and 28 create duties, and therefore powers, and the Board is 
exercising these powers whenever one of its vehicles is being driven in an endeavour 
"by all practicable measures" (s. 19) and "with all speed" (s. 28) to get to a fire for the 
purposes which the sections mention. There is no difficulty in finding in the creation of 
a duty an implied grant of power.”

[92] The duty that the Coal Act imposed upon the Respondent, was therefore said to give 
rise to a power to implement or give rise to the course of action so far as is it is necessary to 
discharge the obligation.xxxii That is, the Respondent submitted it was able to take any 
reasonable and necessary course of action, to ensure anyone is not exposed to an unacceptable 
level of risk. Mr Gustafson was empowered to require the Applicant to attend a medical 
assessment, in the circumstances. This is the lawful basis upon which the Respondent says the 
direction was made.

Consideration

[93] In assessing the application it is necessary to consider the criteria in s.387 of the Act, 
as follows.

(a) whether there was a valid reason for the dismissal related to the person’s capacity or 
conduct (including its effect on the safety and welfare of other employees).

[94] Several reasons for the dismissal were relied upon by the Respondent at the time of the
Applicant’s dismissal. It is helpful to recall them here:

“...
 Refused to attend your appointment with Dr McCartney at 11.00 am on the 

17th April 2013;








[2014] FWC 1712

17

 Refused to attend your rescheduled appointment with Dr McCartney at 
1.30 pm on the 17th April 2013 after being directed to attend and warned 
that your failure to attend would result in disciplinary action;

 On numerous occasions since 2nd April 2013 you have sought to record 
conversations, without the consent of the individuals concerned;

 Refused to cooperate and participate during an investigation interview on 
the 22nd April 2013 into your refusal to attend the appointments with Dr 
McCartney, failed to treat Mr Gustafson with courtesy and respect during 
the interview and displayed an uncooperative attitude and demeanour 
during the interview.”

[95] During the proceedings, the Respondent resiled from reliance upon the recording of 
conversations by the Applicant, as a reason for the termination. Given that it was part of the 
reasons for dismissal I provide the following reasons; such conduct, in requiring to tape 
conversations in the employment setting, is questionable. However, there is no evidence that 
the Applicant did in fact record any conversation without consent to such. The evidence is 
that where the Applicant requested permission and it was granted, he recorded the 
conversation, where it was not granted the Applicant’s evidence is that he did not record it. 
Mr Townsend’s evidence, during cross-examination, was that he was unaware that the 
Applicant may have had consent in relation to some recordings, or that, where consent was 
refused, the Applicant stated he did not record the conversation.xxxiii

[96] Whilst it is recognised that the Respondent ultimately is not relying on this element (of 
the taping of conversations) in defending the termination, it was taken into account by the 
Respondent for the dismissal. On the basis of the evidence before this Commission, in relation 
to the current circumstances, this reason is not made out and is not a valid reason for the 
dismissal. However, the Applicant’s conduct in seeking to tape the conversations has been 
taken into account in terms of the other relevant factors in this matter.

Refusal to attend the appointment and reschedule appointment

[97] The question for determination (in relation to the Applicant’s attendance at the 
scheduled medical appointments) is whether the direction for the Applicant to attend upon Dr 
McCartney was lawful, and reasonable. The Applicant submitted that it was neither lawful, 
nor reasonable.

Lawfulness of the direction

[98] The Applicant referred the Commission to Blackadder v Ramsey Butchering services 
Pty Ltdxxxiv and in particular the following:

“67 An employer has, as indicated above, strict obligations under the NSW legislation 
to ensure the safety and well-being of its employees. The importance of occupational 
health and safety is also reflected in the Act. Whilst an AWA, in general, prevails over 
conditions of employment specified in State laws to the extent of any inconsistency, 
provisions which relate to certain matters, such as occupational health and safety, 
operate subject to any relevant State law (see s 170VR(2) of the Act). 

68 It is, in my opinion, essential for compliance with the above duties, that an 
employer be able, where necessary, to require an employee to furnish particulars 








[2014] FWC 1712

18

and/or medical evidence affirming the employee's continuing fitness to undertake 
duties. Likewise, an employer should, where there is a genuine indication of a need for 
it, also be able to require an employee, on reasonable terms, to attend a medical 
examination to confirm his or her fitness. This is likely to be particularly pertinent in 
dangerous work environments. Abattoirs entail obvious risks, among other things, of 
injuries from the repetitive use of knives at speed, and to the spinal column from the 
necessity to twist, bend and/or lift. 

69 The question whether it is reasonable for an employer to request an employee to 
attend a medical examination will always be a question of fact as will the question of 
what are reasonable terms for the undertaking of the medical examination. The 
matters will generally require a sensitive approach including, as far as possible, 
respect for privacy. Nevertheless, I assume that there now should be implied by law 
into contracts of employment terms such as those set out in the first two sentences of 
the preceding paragraph, on the basis that such terms pass the test of "necessity" 
accepted by McHugh and Gummow JJ in Byrne v Australian Airlines Ltd [1995] HCA 
24; (1995) 185 CLR 410 at 450.” (emphasis added)

[99] The Applicant submitted that this reasoning was at odds with the reasoning of the 
Supreme Court of Queensland in Edwards v North Goonyella Coal Mines Pty Ltdxxxv.

[100] The Applicant submitted that the Respondent had no lawful basis upon which to direct 
the Applicant to attend a medical appointment. The Applicant referred the Commission to the 
decision of the Queensland Supreme Court in Edwards v North Goonyella Coal Mines Pty 
Ltdxxxvi.

[101] The Respondent submitted that the Applicant’s reliance upon the decision in Edwards
is misplaced. This is so because the Respondent submitted that Edwards concerned the proper 
construction of the relevant Regulations, which were not relied upon by the Respondent in 
this matter.

[102] In this regard the Respondent submitted that the reasoning of the Court in Edwards did 
not recognise that a duty to follow all lawful and reasonable directions of an employer is 
implied by law into the employment relationship.xxxvii

[103] In so far as the decision of Edwards considers the lawfulness of the direction to the 
employee in that matter, to attend for a medical assessment pursuant to the Regulations, the 
decision does not bear upon the issues for consideration in this matter.

[104] In relation to a contractual right to require the employee in that matter to attend a 
medical examination it was found that the Respondent must rely upon an implied contractual 
term (in the absence of an express term).xxxviii It was stated that a term may be implied into a 
contract, where the term was “necessary for the reasonable or effective operation of the 
contract”.xxxix It was found that, given that the Act and Regulations set out a comprehensive 
scheme for these matters it was not necessary to imply the more general term into the 
contract.xl

[105] While I agree that the Coal Act does set out obligations upon an employer and 
employee within the Coal industry, the Coal Act and Regulations do not do so exhaustively. 






http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281995%29%20185%20CLR%20410
http://www.austlii.edu.au/au/cases/cth/HCA/1995/24.html
http://www.austlii.edu.au/au/cases/cth/HCA/1995/24.html


[2014] FWC 1712

19

The Act specifically acknowledges that whilst obligations are imposed upon coal mine 
workers, and other persons at a coal mine, those obligations extend to an obligation:

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

[106] It is apparent that the Coal Act acknowledges that a person may be obligated to take 
action, not otherwise stipulated by the Act, to “ensure anyone is not exposed to an 
unacceptable level of risk”.xlii 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 concerns exist for ensuring the employee is medically fit to return to his 
duties at the mine.

[107] In any event the Respondent submitted that they did not rely upon a contractual 
obligation/entitlement to direct the Applicant.

[108] It is reasonably apparent that Atkinson J distinguished Blackadder from the matter 
before her; primarily because of the nature of the legislative regime in relation to the Coal Act 
and the contractual argument before her.xliii Having distinguished Edwards from this matter, 
Blackadder becomes applicable to this situation, where contractual terms are not relied upon,
but statutory powers are. It is contradictory to say that the Coal Act imposes duties upon 
persons to ensure actions are taken to ensure the health and safety of others, whilst also 
restricting the power upon which those persons may discharge that duty.

[109] Mr Gustafson was uniquely placed to discharge this obligation. In his position, as the 
Applicant’s manager, he was obligated to take action to ensure the health and safety of the 
workers with which the Applicant would work, and the Applicant himself. I find that the 
direction upon the Applicant was lawful under the Coal Act; specifically s.39(1)(c).

Reasonableness of the direction

[110] The concerns of the Respondent were reasonable. The Applicant had been absent for 
an extended period. No medical advice or information had been provided by the Applicant 
regarding the specific nature of the medical condition that existed. Each medical certificate 
supplied stated “medical condition” as the reason for the Applicant’s being unfit for duty.

[111] The Applicant has given no evidence of any specific steps taken by him to prepare for 
his return to work, other than turning up at the gate with what he considered was a “medical 
clearance”. The Respondent also took no steps, during the Applicant’s absence, to monitor the 
situation or to understand what steps the Respondent might need to take to plan or prepare for 
the Applicant’s return. No explanation was given by either party during proceedings as to why 
there was such limited contact made by either party during this period.

[112] At the time of the Applicant’s return to work (2 April 2013) on the basis of the 
material before them (the medical certificates), the Respondent understood that the Applicant 
had been absent for a period of some 8 months. During this lengthy period there had been no 
discussion or specific notification (of the nature of injury or rehabilitation) from either party 
regarding the Applicant’s absence, beyond the provision of general medical certificates. That 
situation alone would reasonably have caused the Respondent to seek further information,
before allowing the Applicant onto the Mine site to perform potentially dangerous work, in an 








[2014] FWC 1712

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

[113] An Employer has an obligation to ensure a safe system of work and a duty of care is 
owed to all those on their worksites and specifically in relation to the safety of their 
employees. However, it is also a reasonable expectation that where an employee considers 
that he is medically fit, the employer will clearly set out the basis for requiring the employee 
to attend for the further medical assessment. This is particularly so given the confusion around 
the original reference to the PPI as evidence by Mr Gustafson’s omission in his diary note in 
relation to this evidence.xliv

[114] The evidence before the Commission is that during the 8 month absence the Applicant 
underwent surgery on his shoulder and associated rehabilitation. Given the Respondent had 
little information on these facts (except for the purported medical clearance, written in general 
terms) it is reasonable that the Respondent sought to confirm the capacity of the Applicant to 
return to his normal duties. The Applicant himself raised, on arriving at the site, that he was 
unsure whether his SOP’s would be up-to-date, thus demonstrating his uncertainty about 
returning immediately to his duties after such a lapse of time.

[115] In the circumstances, it is entirely reasonable that the Respondent would have at least 
sought further advice and information on the Applicant’s fitness to ensure that it was not 
exposing the Applicant, or others, to unacceptable risk from any limitation arising from the 
injury or by virtue of his lengthy absence. The evidence relating to the Applicant’s initial 
refusal to attend the medical appointment, comply with the investigation, and the taping of 
conversations, satisfies the Commission that the Applicant was suspicious, or at least 
uncertain, about the Respondent’s requests. While neither party specifically addressed the 
Commission as to the basis for the Applicant’s conduct, it was obviously a response to the 
situation whereby the Applicant considered he held a full medical clearance and that he, and 
his Union, were not given an explanation as to why the further medical assessment was 
sought, or what was relied upon for the direction.

[116] Given the nature of the Applicant’s medical history and the fact that the Applicant had 
had surgery and rehabilitation, the Respondent had reasonable cause to satisfy itself that the 
Applicant could safely perform his duties and would not expose anyone to an unnecessary 
level of risk. The medical evidence which the Applicant provided was insufficient and did not 
particularly focus upon an occupational assessment. However, this position could have been 
explained to the Applicant and that the Respondent simply sought to have his clearance for 
duty checked against his actual duties at the mine.

[117] The question then is, was it reasonable that the Respondent require the Applicant to 
specifically attend a specialist of their choosing, or could the Applicant insist that he be 
provided an opportunity to attend his medical specialist. In the circumstances of this matter,
where the Respondent had a duty arising from their statutory obligations as Coal Mine 
Operators to ensure the health and safety of the Applicant, and anyone working with him, to 
ensure prior to the Applicant being returned into the mine operations, 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. The 








[2014] FWC 1712

21

Respondent maintained that he had knowledge of the mining industry. In contrast, the 
Applicant’s suggestion was that he visit his doctors, who were not (on the evidence before the 
Commission) specialised in this regard. Alternatively, the Applicant sought to be provided 
with a copy of his position description to provide to his medical advisors. Had the Applicant 
attended upon Dr McCartney and the resulting report not been favourable to the Applicant, it 
would then have become a matter, presumably, for the Applicant to seek his own second 
opinion. Had this occurred, and the Respondent refused that opportunity, this would have 
been a relevant consideration in an unfair dismissal application.

[118] At all times during the case, the Applicant’s evidence was that he was medically 
cleared and fit to return to work. Subsequent to the close of evidence in this matter (following 
the Hearing in Mackay) but prior to having the final submissions the Respondent’s 
WorkCover lawyer (separate to the solicitors and Counsel representing the Respondent in the 
current proceedings), forwarded correspondence to my Chambers seeking that I provide 
documentation from the current s.394 application’s file. This information was sought for the 
purposes of separate WorkCover proceedings. Attached to this correspondence was a 
document (a statement of claim) with the signature of the Applicant. This statement of claim,
declared by the Applicant, stated that he had a 20% permanent impairment. This is directly 
contrary to his evidence, on his medical condition, in the matter before this Commission. This 
matter is discussed further in this decision.

Did the Applicant fail to comply with the Respondent’s direction?

[119] The Applicant’s evidence is that he did turn up to Dr McCartney’s office on 17 April 
2013 (being the first appointment). The Applicant stated that he contacted Dr McCartney, 5 
minutes prior to the appointment, to query whether he needed to bring anything. He did so in 
circumstances where his evidence is that he was already on his way to the appointment or was 
parked in the car park outside the Doctor’s surgery.xlv This conduct is illogical and indicative 
of the Applicant seeking to avert or delay the assessment. It is illogical that the Applicant 
waited until 5 minutes prior to his appointment, to query with the Doctor whether he was 
required to bring anything to the appointment, especially in circumstances where the 
Applicant had, according to his evidence, already left his home and was in transit. It is also 
illogical from the perspective that any reasonable person, would have at least attended at the 
office, if they had already gone to the effort of otherwise attending, this is particularly so as 
Dr McCartney clearly conveyed to the Applicant that he could proceed with the assessment, 
without the reports and that he (Dr McCartney) could seek them at a later time. The 
Applicant’s evidence in this regard and the evidence about how he conveyed the contents of 
the discussions was not entirely truthful or transparent. The Applicant distorted the facts as 
conveyed to him by Dr McCartney and was misleading Mr Gustafson that the reports were 
“required” prior to proceeding with the assessment.

[120] I am not satisfied that the reason for the Applicant refusing to attend the appointment 
with Dr McCartney was legitimate. Whilst the Applicant felt that the preferred course was for 
the Doctor to have all his reports at that time, the Doctor clearly indicated that this was not an
impediment to the appointment proceeding. The Applicant stated that he was required to 
bring his scans for Dr McCartney to perform the functional assessment. However, a review of 
the transcripts provided of the conversations with Dr McCartney do not support this finding. 
Dr McCartney makes clear that he can still proceed with the assessment, in the absence of the 
scans. The Applicant stated in cross-examination that as it was his appointment he wanted the 
scans to be there.xlvi While that reasoning has some merit, it is undermined by the context of 








[2014] FWC 1712

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the situation. The Applicant had been directed to attend the appointment; Dr McCartney had 
confirmed to the Applicant that he could proceed without the scans. The Applicant knew that 
the Doctor had travelled to attend in Mackay for the appointment and would not be available 
until his next visit. Further, the appointment was being undertaken, at the Respondent’s 
expense, to enable the Respondent to satisfy itself that the Applicant was fit to resume his 
ordinary duties.

[121] I am satisfied that the Applicant failed to comply with the Respondent’s first direction 
to attend an appointment with Dr McCartney. This failure was unreasonable and the reasons 
provided by the Applicant contrived and is not considered to be a genuine reason not to attend 
for the examination.

[122] The second direction to attend upon Dr McCartney is not as straightforward. Mr 
Gustafson’s evidence is that after speaking with the Applicant (after the first failure of the 
Applicant to attend), he directed the Applicant to “not go anywhere and be expecting a further 
call”.xlvii Mr Gustafson’s evidence on this point was not challenged nor did the Applicant 
suggest that he was not given this direction.

[123] I accept Mr Gustafson’s evidence in this regard that, at least, he instructed the 
Applicant to be ready and able to discuss the matter further on that day. The Applicant was 
also stood down on pay at this time, the expectation being that he be ready and able to be 
directed by the Respondent, particularly as his return to work was dependent on this 
assessment. The Applicant essentially stated that he “missed” Mr Gustafson’s return phone 
call to return to Dr McCartney’s office. Again, this evidence is illogical. Any reasonable 
person, who was involved in such circumstances, would have been hesitant to miss a further 
communication from the Respondent in this regard; particularly where the Applicant had been 
specifically warned that disciplinary action may result. Mr Leggett’s evidence also supports a 
finding that the Applicant did receive Mr Gustafson’s message prior 2.10pm when he says he 
first received it.xlviii

[124] I am satisfied that the Applicant also failed to attend upon Dr McCartney the second 
time. Having said such, it must be recognised, as Mr Gustafson conceded in his evidence, that 
the Respondent, in directing the Applicant to attend the medical assessment, should have also 
told the Applicant to take his medical reports. The provision of this information to the 
Applicant (whilst it seems routine) would have given no opportunity for any delay or non-
attendance altogether; although I have found that the original non-attendance, given the 
Doctor’s response, was not justified in any event.

[125] 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.

Refusal to cooperate and participate in investigation process

[126] Further, on the evidence, the Applicant unreasonably refused to cooperate 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.

[127] The very nature of these meetings is to ascertain the matters between the parties and to 
explore the facts or issues in contention. Given that the issues at hand were relatively 








[2014] FWC 1712

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straightforward, the Applicant’s request for every question to be put in writing and for him to 
respond to that was improper, in terms of the employment relationship.

[128] The practice sought by the Applicant, in having all questions in writing, was 
inconsistent with an investigation interview. As an interview of this type proceeds, it is 
regular that issues arise, from both sides, that require further or different questions. The 
Responses given by a person may give rise to additional questions or considerations than was 
otherwise anticipated. To require all questions to be put in writing would unreasonably restrict 
the purpose of the process. The Applicant was to be supported by the Union at the interview. 
This stance by the Applicant, gave further insight into the Applicant’s approach to the 
employment relationship. This has been considered together with the Applicant’s refusal to 
attend the medical assessment, and his endeavours to tape the conversations.

[129] The Commission is satisfied that this refusal to participate in the investigation process
formed part of the valid reason for the dismissal.

(b) whether the person was notified of that reason and (c) whether the person was given an 
opportunity to respond to any reason related to the capacity or conduct of the person.

[130] This matter was not in contest between the parties. However, I am satisfied that the 
Applicant was notified of the reasons for dismissal. The Respondent attempted to provide the 
Applicant with an opportunity to respond, during the disciplinary meetings, but the conduct of 
the Applicant stifled these attempts.

[131] In any event the allegations were put to the Applicant by letter of 30 April 2013.xlix

And the Applicant responded in writing to such on 6 May 2013.l

(d) any unreasonable refusal by the employer to allow the person to have a support person 
present to assist at any discussions relating to dismissal.

[132] This matter does not arise for consideration. The Applicant was able to have his 
support person present for the critical discussions.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person 
had been warned about that unsatisfactory performance before the dismissal.

[133] This matter does not relate to unsatisfactory performance and therefore does not arise 
for consideration.

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the 
procedures followed in effecting the dismissal and (g) the degree to which the absence of 
dedicated human resource management specialists or expertise in the enterprise would be 
likely to impact on the procedures followed in effecting the dismissal.

[134] These matters have not been raised by the parties. I have however taken into account 
the size of the Respondent’s organisation and its access to specialist advice in many areas; 
human resources, industrial relations, workplace health and safety and rehabilitation. I have 
taken into account the conduct of the relevant Superintendent in his communications with the 
Applicant and the Respondent, and the clear evidence that this situation had not been handled 
in an optimum manner by the Respondent, given the lack of explanation for the medical 








[2014] FWC 1712

24

attendance, which could have reasonably been provided with some further clarity. It is 
acknowledged that while Mr Gustafson was the point of contact, he was repeatedly seeking 
guidance from ‘human resources’ on the matter. It is noted however that Mr Gustafson did 
send an email to the Applicant outlining the general basis for the attendance at the medical 
assessment.

(h) any other matters that the FWC considers relevant.

[135] I have taken into account the Applicant’s evidence that he attended at the mine after 
his absence, despite the fact that he was aware that he had not allowed for proper 
communication for his return with the Employer. He then further attended, on 16 April 2013, 
although he was directed not to attend the site by the Respondent.li Such actions are 
concerning generally, but are exacerbated by the context that the employer conducts a mine 
site, an inherently dangerous workplace that warrants a specific coal safety statute. Via such, 
the Respondent must take measures to ensure that it is able to strictly control those persons 
who are on site and their fitness for duty. It is questionable when a person who has been 
directed not to attend the site, decides to do so.

[136] However, in examining the Applicant’s conduct, I have taken into account the 
difficulties created in this matter by the conduct of both parties. For example, the actions of 
the Applicant discussed above, in attending at the mine site on 16 April 2013, and further the 
fact that the Applicant 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 certificates stipulating different timeframes for the clearance, or fitness for 
duty). A reasonable employee would have contacted the employer prior to their attendance to 
confirm their intended return, the status of their injury and rehabilitation and any requirements 
that may have been necessary for their return to work. This is particularly so in circumstances 
of such a lengthy absence with minimal contact having been made between the parties and 
where the Applicant admits that he also had concerns about his ability to safely work at that 
time taking into account that his standard operating procedures may need updating.lii

[137] It is also of concern that the Applicant felt it necessary to record various conversations 
and messages, in circumstances where there was no evidence presented of any previous 
dubious or deceptive actions (towards the Applicant) on the part of any person representing 
the Respondent. While the evidence is such that the Applicant does not appear to have 
recorded any conversation without the other party’s express consent, the act of seeking to 
record conversations presupposes that the recordings will be used for some purpose, and is in 
any event is concerning. It is also of concern that the Applicant’s evidence is that others were 
able to listen in to conversations he had had with Mr Gustafson, for example, without his 
knowledge.liii Such conduct undermines the employment relationship and the obligation of 
mutual trust and confidence.

[138] It is also relevant that the Applicant, and his Union, made numerous requests for 
advice from the Respondent, as to the basis upon which he was being stood down (where the 
relevant PPI provision could not be relied upon in these circumstances) and directed to attend 
a medical appointment, when he had provided a medical clearance. The Respondent’s 
submissions to the effect that the reasoning should have been obvious to the Applicant and his 
representatives, is an inadequate position to adopt. The Applicant (and his representatives)
had clearly, and on multiple occasions, requested specific advice from the Respondent, about 
the basis upon which they were preventing his return to the workplace until further medical 








[2014] FWC 1712

25

information was available. I can 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 for work.

[139] The process also could have provided information to the Applicant relating to any 
proposed review of the subsequent medical information, which may have limited the 
Applicant’s opportunity to return to normal duties. In circumstances where the Applicant had 
requested for his medical advisors to undertake the functional assessment it would have been 
appropriate, in my view, for the Respondent to confirm its requirement for the Applicant to 
attend the medical appointment but that if the Applicant had a concern with the result of that 
appointment it was open to him to take those results to his own medical advisors for an 
alternate opinion which may then be considered by the Respondent.

[140] I also note that in the decision of Edwards her Honour Atkinson J stated:

“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, the 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.”liv (emphasis added)

[141] Accordingly, the instruction to provide further medical information was warranted in 
the circumstances.

The WorkCover statement of claim

[142] As previously mentioned, after the evidentiary case of both parties had closed, but 
prior to closing submissions in the matter, the Commission received correspondence from a 
third party, acting for the Respondent’s insurer in relation to a WorkCover claim by the 
Applicant. This matter was listed for Mention with the parties and, after raising the matter
with the parties, the Commission accepted into evidence a copy of a “notice of claim for 
damages” completed by the Applicant.

[143] Relevant to this matter, that claim for damages, is said to arise out of the shoulder 
injury, the subject of the current proceedings. The Applicant has claimed a 20% degree of 
permanent impairment arising from the injury. Specifically, on the document, the Applicant 
has declared that he “suffers pain and is restricted in his movement”.lv This is at odds with the 
Applicant’s evidence and submissions in this matter. The notice of claim was dated, and 
signed by the Applicant, on 1 October 2013; 7 days prior to the Applicant’s affidavit being 
filed in these proceedings. The Applicant made no mention of this matter during proceedings 
until such was raised by the Commission. It is not suggested that the representatives of the 
Applicant, or the Respondent, misled the Commission in relation to this evidence.








[2014] FWC 1712

26

[144] The Applicant’s representative characterised this notice by stating that it was simply a 
claim, and that there was no medical evidence that the Applicant was in fact impaired. This 
submission must be measured against the declaration, made under the Workers’ 
Compensation and Rehabilitation Act 2003 (Qld), in terms that all statements in the notice are 
“true, correct and complete in every respect”. 

[145] It must be noted that, arising from the ‘Mention’ of this matter by telephone 
conference, the Applicant was directed to attend the final hearing, and that either party was at 
liberty to put the document before him. Whilst the Applicant was in attendance, neither 
Counsel required the Applicant to be recalled to adduce evidence from him in relation to the 
WorkCover document before the Commission. It is therefore open to me to make an 
inference.lvi No further information was provided to overcome the statement in that claim that 
the Applicant was not fully fit to return to the workplace or as to why no further evidence was 
taken from the Applicant as to the circumstances of the evidence of the 20% declaration of 
permanent impairment, given this evidence is in direct contrast with his purported full 
medical clearance. The election not to recall the Applicant, allows me to infer that his 
evidence, in relation to the WorkCover claim would not have assisted his case.

Conclusion

[146] The basis for the directions were explained to the Applicant; in the circumstances of 
the Applicant’s sudden return to the workplace, with quite insufficient and generic medical 
information, the Respondent was entitled to discharge its safety obligation as a coal mine 
operator, in requiring the further medical information.

[147] Deficiencies have been noted in the Respondent’s responses to the Applicant. These 
deficiencies have been taken into account in the procedural fairness offered to the Applicant. 
So too has the Applicant’s length of service, as well as the conduct of the Applicant in taping 
conversations and his approach to the Respondent’s directions. This conduct has been
measured against the expected core values and conduct required in the Applicant’s 
employment.

[148] 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.

[149] For the aforementioned reasons, the termination is not considered to be harsh, unjust 
or unreasonable. The application, made pursuant to s.394 of the Act, is dismissed.

[150] I Order accordingly.








[2014] FWC 1712

27

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Price code G, PR548590

                                               
i PN1964.
ii Exhibit 1 at paragraph 26.
iii Ibid at paragraph 27.
iv Ibid at annexure DG 4.
v Ibid at annexure DG5.
vi Ibid at paragraph 30.
vii Ibid at paragraph 41.
viii Ibid at paragraph 47.
ix Ibid at paragraph 58.
x Ibid at annexure DG6.
xi Ibid at paragraph 83.
xii Ibid at annexure DG7.
xiii PN178.
xiv Ibid at paragraph 99.
xv Ibid at paragraph 100.
xvi Ibid at paragraph 102.
xvii Ibid at paragraph 106.
xviii PN199.
xix Statement of Darrin Grant at paragraph 107.
xx Statement of Darrin Grant at paragraph 108.
xxi Statement of Darrin Grant at paragraph 109.
xxii Statement of Darrin Grant at paragraph 119.
xxiii Statement of Darrin Grant at paragraph 123.
xxiv Statement of Darrin Grant at paragraph 120.
xxv Statement of Darrin Grant at paragraph 133.
xxvi Ibid at DG12.
xxvii [2002] FCA 603.
xxviii For example Applicant’s final submissions at paragraph 3.
xxix Affidavit of Mr William Gustafson at paragraph 9.
xxx Respondent’s closing submissions at paragraph 9.


FAIR WORK CO. MAISSION AUSTRALIA THE SEAS




 



[2014] FWC 1712

28

                                                                                                                                                  
xxxi [1961] HCA 71; (1961) 109 CLR 105.
xxxii Respondent’s outline of submissions at paragraph 18.
xxxiii PN1433 - PN1442.
xxxiv [2002] FCA 603.
xxxv [2005] QSC 242.
xxxvi [2005] QSC 242.
xxxvii In this regard the Respondent referred to University of Western Australia v Gray [2009] FCAFC 116 at [138]; Pack-

Trainers Pty Ltd v Moore [2005] NSWCA 42 at [10].
xxxviii [2005] QSC 242 at [37].
xxxix Ibid at [37].
xl Ibid at [37].
xli Coal Mining Safety and Health Act 1999 (Qld) s.39(1)(c).
xlii The Coal Mining Safety and Health Act 1999 (Qld) also has other general obligations eg s.39(2)(f).
xliii  [2005] QSC 242 at [38]
xliv Exhibit 10.
xlv Statement of Darrin Grant at paragraph 110.
xlvi PN210 to PN212.
xlvii Affidavit of William Gustafson at paragraph 55.
xlviii Statement of Scott Leggett at paragraph 52; PN610 - PN 611.
xlix Statement of Andrew Townsend at AMT6.
l Ibid at AMT7.
li Statement of Darrin Grant at paragraph 91; PN200.
lii Statement of Darrin Grant at paragraph 35.
liii For example Statement of Darrin Grant at paragraph 118. The evidence of this Applicant in this regard is that he 

introduced his father to Mr Gustafson at the end of the conversation.
liv [2005] QSC 242 at [18].
lv Statement of Vincent Rogers at VPR-1, item 46.
lvi Jones v Dunkel & Anor. [1959] 101 CLR 298.

Cases cited by this decision: