[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.]
FAIR WORK COMMISSION

DECISION


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 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:

[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. 1

Relevant legislation and initial matters

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

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

[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:

[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 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:

[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

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”. 2 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”. 3

[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:

[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. 5 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”.6

[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”. 7

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

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

[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”. 9 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 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. 10

[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” 11 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:

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

[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 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. 13 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:

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

[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:

[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:

[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. 18 The Applicant recorded this conversation, seemingly with the consent of the parties, as follows:

[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:

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

[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:

[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:

[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:

[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:

[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.

[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:

[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:

[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.

[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 Ltd 27 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. 28 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”. 29 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 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. 30

[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:

[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. 31 Kitto J in that matter said, at [10]:

[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. 32 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:

[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. 33

[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 Ltd 34 and in particular the following:

[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 Ltd 35.

[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 Ltd 36.

[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. 37

[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). 38 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”.39 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.40

[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. 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:

[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”. 42 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. 43 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 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. 44

[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 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. 45 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. 46 While that reasoning has some merit, it is undermined by the context of 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”. 47 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. 48

[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 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. 49 And the Applicant responded in writing to such on 6 May 2013.50

(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 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. 51 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. 52

[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. 53 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 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:

[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”. 55 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.

[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. 56 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.

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COMMISSIONER

 1   PN1964.

 2   Exhibit 1 at paragraph 26.

 3   Ibid at paragraph 27.

 4   Ibid at annexure DG 4.

 5   Ibid at annexure DG5.

 6   Ibid at paragraph 30.

 7   Ibid at paragraph 41.

 8   Ibid at paragraph 47.

 9   Ibid at paragraph 58.

 10   Ibid at annexure DG6.

 11   Ibid at paragraph 83.

 12   Ibid at annexure DG7.

 13   PN178.

 14   Ibid at paragraph 99.

 15   Ibid at paragraph 100.

 16   Ibid at paragraph 102.

 17   Ibid at paragraph 106.

 18   PN199.

 19   Statement of Darrin Grant at paragraph 107.

 20   Statement of Darrin Grant at paragraph 108.

 21   Statement of Darrin Grant at paragraph 109.

 22   Statement of Darrin Grant at paragraph 119.

 23   Statement of Darrin Grant at paragraph 123.

 24   Statement of Darrin Grant at paragraph 120.

 25   Statement of Darrin Grant at paragraph 133.

 26   Ibid at DG12.

 27   [2002] FCA 603.

 28   For example Applicant’s final submissions at paragraph 3.

 29   Affidavit of Mr William Gustafson at paragraph 9.

 30   Respondent’s closing submissions at paragraph 9.

 31   [1961] HCA 71; (1961) 109 CLR 105.

 32   Respondent’s outline of submissions at paragraph 18.

 33   PN1433 - PN1442.

 34   [2002] FCA 603.

 35   [2005] QSC 242.

 36   [2005] QSC 242.

 37   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].

 38   [2005] QSC 242 at [37].

 39   Ibid at [37].

 40   Ibid at [37].

 41   Coal Mining Safety and Health Act 1999 (Qld) s.39(1)(c).

 42   The Coal Mining Safety and Health Act 1999 (Qld) also has other general obligations eg s.39(2)(f).

 43   [2005] QSC 242 at [38]

 44   Exhibit 10.

 45   Statement of Darrin Grant at paragraph 110.

 46   PN210 to PN212.

 47   Affidavit of William Gustafson at paragraph 55.

 48   Statement of Scott Leggett at paragraph 52; PN610 - PN 611.

 49   Statement of Andrew Townsend at AMT6.

 50   Ibid at AMT7.

 51   Statement of Darrin Grant at paragraph 91; PN200.

 52   Statement of Darrin Grant at paragraph 35.

 53   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.

 54   [2005] QSC 242 at [18].

 55   Statement of Vincent Rogers at VPR-1, item 46.

 56   Jones v Dunkel & Anor. [1959] 101 CLR 298.

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