Grant v BHP Coal Pty Ltd

Case [2017] FCAFC 42

FEDERAL COURT OF AUSTRALIA

Grant v BHP Coal Pty Ltd [2017] FCAFC 42

Appeal from: Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374
File number: QUD 1162 of 2015
Judges: DOWSETT, BARKER AND RANGIAH JJ
Date of judgment: 10 March 2017
Catchwords: INDUSTRIAL LAW – appeal against primary judge’s dismissal of challenge to decisions of the Fair Work Commission – whether dismissal was harsh, unjust or unreasonable –whether the Coal Mining Safety and Health Act 1999 (Qld) provides authority for employer to direct employees to attend medical appointments – obligations of coal mine workers to discharge their safety and health obligations – whether legislature clearly intended to abrogate or suspend a right, freedom, or immunity – whether employer has implied contractual right to direct employees to attend medical examinations – whether privilege against self-incrimination applies in the sphere of employment – appeal dismissed
Legislation:

Fair Work Act 2009 (Cth) ss 385, 385(b), 387, 387(a), 394(1)

Judiciary Act 1903 (Cth) s 39B

Coal Mining Safety and Health Act 1999 (Qld) ss 6, 26, 29, 33, 34, 37, 38, 39, 42, 46, 48, 282, Schedule 2

Coal Mining Safety and Health Regulation 2001 (Qld) ss 5, 42 and 46

Legislative Standards Act 1992 (Qld) s 4

Explanatory notes, Coal Mining Safety and Health Bill 1999 (Qld)
Cases cited:

Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412

Anderson v Australian Securities and Investments Commission [2012] QCA 301

Coco v The Queen (1994) 179 CLR 427

Edwards v North Goonyella Coal Mines Pty Ltd [2005] QSC 242

Gemmell v Le Roi Homestyle Cookies Pty Ltd(in liq) [2014] VSCA 182

Lee v New South Wales Crime Commission (2013) 251 CLR 196

Microsoft Corporation v CX Computer Pty Ltd (2002) 116 FCR 372

Murray Irrigation Ltd v Balsdon [2006] NSWCA 253

Police Service Board v Morris (1985) 156 CLR 397

R v The Darling Island Stevedoring and Lighterage Company Limited; Ex parte Halliday and Sullivan (1938) 60 CLR 601

Re Australian Property Holdings (in liq) No 2 (2012) 93 ACSR 130

Re Trade Practices Commissioner v Arnotts Limited [1989] FCA 256

Sorby v The Commonwealth (1983) 152 CLR 281

Starr v National Coal Board [1977] 1 All ER 243

X7v Australian Crime Commission (2013) 248 CLR 92]
Date of hearing: 2 August 2016
Registry: Queensland
Division: General Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 113
Counsel for the Appellant: Mr J Agius SC with Mr B Docking
Solicitor for the Appellant: Hall Payne Lawyers
Counsel for the Respondents: Mr I Neill SC with Mr S Meehan
Solicitor for the Respondents: Ashurst Australia

ORDERS

QUD 1162 of 2015
BETWEEN:

DARRIN JAMES GRANT

Appellant
AND:

BHP COAL PTY LTD

First Respondent

FAIR WORK COMMISSION

Second Respondent

JUDGES:

DOWSETT, BARKER AND RANGIAH JJ

DATE OF ORDER:

10 MARCH 2017

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.There is no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32…

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Grant v BHP Coal Pty Ltd [2017] FCAFC 42
Case
[2017] FCAFC 42
Decision Date

CaseChat Overview and Summary

In the case of Grant v BHP Coal Pty Ltd, the applicant appealed against the primary judge’s dismissal of his challenge to decisions of the Fair Work Commission (FWC). The primary dispute centred on the lawfulness of the employer's directions for the appellant to attend medical appointments and whether his dismissal was harsh, unjust, or unreasonable under the Fair Work Act 2009 (Cth). The court was required to decide whether the Coal Mining Safety and Health Act 1999 (Qld) provided authority for the employer to direct employees to attend medical appointments and whether the employer had an implied contractual right to do so. The court also needed to consider whether the privilege against self-incrimination applied in the sphere of employment.

The court reasoned that the directions given by the employer were authorised by s 39(1)(c) of the Coal Mining Safety and Health Act, which required coal mine workers to take reasonable and necessary actions to ensure no one was exposed to an unacceptable level of risk. The court held that the employer's requirement for the appellant to attend a medical examination was reasonable given the circumstances, including the appellant's prolonged absence from work and the need to ensure his fitness for potentially dangerous work. The court further determined that the privilege against self-incrimination did not apply in this context and that the employer's directions were not an unlawful interference with the appellant's rights. Consequently, the court found no error in the primary judge’s dismissal of the appeal and upheld the FWC's decision.

Orders

Orders of the court

1. The appeal is dismissed.

2. There is no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons that follow, the appeal must be dismissed. Background The appellant commenced employment with the first respondent as a boilermaker at the Peak Downs Mine in central Queensland on 25 November 2003. The appellant injured his right shoulder on 21 October 2011 while undertaking his duties at the mine. Between October 2011 and July 2012, the appellant re-injured his shoulder on a number of occasions, both during and outside work hours. In July 2012, the appellant re-injured his shoulder again, this time while mowing his lawn outside work hours. From 23 July 2012, the appellant was on extended sick leave, undergoing shoulder stabilisation surgery on 12 September 2012. There was very little contact between the appellant and his employer while he was on sick leave, other than the appellant providing his employer with a series of medical certificates from his general practitioner and treating orthopaedic surgeon. These eventually included a certificate from his general practitioner stating that the appellant was “fit to return to his normal duties as and from Monday, April 1st 2013” and a later certificate from his orthopaedic surgeon to similar effect. The appellant attended the mine site to recommence work on 2 April 2013. The Field Maintenance Superintendent at the mine, William Gustafson, informed the appellant that he would need to see “a BMA doctor” and that he would be sent home on full pay until an appointment could be arranged for him to see the doctor. On 10 April 2013, the appellant received an email from Mr Gustafson directing him to attend a medical appointment with a Dr McCartney on 17 April 2013. The purpose of the medical examination was said to be to understand any limitations with respect to the appellant’s fitness for work and how his condition impacted upon his ability to perform his role as a boilermaker at the mine. The appellant was dissatisfied with the requirement to attend the medical appointment. That was reflected in text messages from the appellant to Mr Gustafson requiring that any correspondence be forwarded to the appellant’s union and requesting an explanation of the basis upon which he had been “suspended” and directed to attend the appointment. On 16 April 2013, the appellant attended the mine for work but was refused entry. On 17 April 2013, Mr Gustafson left a message on the appellant’s telephone reminding him of the appointment with Dr McCartney scheduled for that day. The appellant responded by text saying that he had asked for a letter indicating why he had been stood down and saying that he had questions regarding the doctor’s appointment. Mr Gustafson left a further message on the appellant’s telephone saying that he was directing the appellant to attend the doctor’s appointment and that failure to do so would be considered a failure to comply with a reasonable direction. At 10.55 am on 17 April 2013, five minutes before the scheduled appointment, the appellant telephoned Dr McCartney and asked whether he was required to bring anything to the appointment. Dr McCartney said that if the appellant had any radiological investigations, x-rays, CTs or MRIs that were relevant, then bringing those along “would be good”.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

At a further meeting on 6 May 2013, the appellant’s employment was terminated. The reasons for termination were essentially those given in the show cause letter.Decision of the FWC at first instance The appellant applied to the FWC for remedies for unfair dismissal pursuant to s 394(1) of the Fair Work Act 2009 (Cth) (“FW Act”). The question before the FWC was whether the dismissal was, within s 385(b) of the FW Act, harsh, unjust or unreasonable. The first respondent resiled from its reliance upon the recording of conversations by the appellant as a reason for the termination of his employment. Commissioner Spencer expressly found that there was no evidence that the appellant recorded any conversation without the consent of the other party to the conversation, but found that his conduct in seeking to tape conversations was nevertheless relevant to the question of whether the termination was harsh, unjust or unreasonable. Having regard to s 387 of the FW Act and the parties’ submissions, the principal issues which fell for determination by the Commissioner were:1.Whether the employer’s directions that the appellant attend the medical appointments with Dr McCartney were lawful (in the sense of being authorised by statute or under the contract of employment).2.Whether such directions were reasonable.3.Whether the appellant had failed to comply with the employee’s directions.4.Whether the appellant had unreasonably refused to cooperate and participate in the investigation process.5.In light of the Commissioner’s findings on the issues indicated above, whether the termination was harsh, unjust or unreasonable. The Commissioner found that Mr Gustafson’s directions that the appellant attend the appointments were authorised by s 39(1)(c) of the Coal Mining Safety and Health Act 1999 (Qld) (“the CMSH Act”). Section 39(1)(c) requires a coal mine worker to take any “reasonable and necessary course of action to ensure anyone is not exposed to an unacceptable level of risk”. The Commissioner found that the section gave Mr Gustafson authority to direct the appellant to attend the medical appointments. The Commissioner noted that the appellant had undergone surgery to his shoulder and associated rehabilitation. He had been absent from work for eight months, there had been very little contact between the appellant and his employer during that time, and no steps had been taken to prepare for his return to work. The appellant was to perform potentially dangerous work in an inherently dangerous workplace. The Commissioner held that in those circumstances it was reasonable for the employer to have sought to confirm the capacity of the appellant to return to his normal duties. The parties and the Commissioner tacitly proceeded on the basis that Mr Gustafson’s directions were the directions of the employer. The Commissioner then turned to the question of whether it was reasonable for the employer to require the appellant to attend the specialist of its choosing, or whether the appellant should have been permitted to attend his own treating doctor for a report. The Commissioner noted that Dr McCartney was an occupational physician who had knowledge of the mining industry and, more specifically, the employer’s operation. In contrast, the appellant’s treating doctors were not so specialised. The Commissioner concluded that it was reasonable for the employer to require the appellant to attend the appointment with Dr McCartney.

Ratio Decidendi

Legal Principle Established

The first respondent submits that privilege against self-incrimination is not available in respect of questions asked in the sphere of employment. It argues that, in any event, the appellant had no privilege against self-incrimination because there was no real appreciable risk that he would thereby have incriminated himself by answering the only question asked of him at the interview. The first respondent also argues that the appellant failed to claim privilege against self-incrimination, whether in the interview or in his evidence before the FWC. Further, the first respondent argues that there was no jurisdictional error where, as noted by the Full Bench, the question of privilege against self-incrimination was not raised before Commissioner Spencer and the Full Bench was concerned only with the correction of error. Consideration It is necessary to provide a further explanation of the issues before the FWC in order to give context to the parties’ submissions. Section 387 of the FW Act provides that in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account a number of specified matters, including whether there was a valid reason for the dismissal related to the person’s conduct. The appellant contended before the FWC that the reason given by the employer that he had failed to comply with directions to attend the medical appointments was not valid because Mr Gustafson had no legal authority to give those directions. There are four relevant paths through which an employer may arguably be authorised to direct that a coal mine worker attend a medical examination. The first is under the protocols for physical and psychological impairment within the mine safety and management system developed pursuant to s 42 of the CMSH Regulation. However, it is common ground that the first respondent’s safety and health management system was invalid and inapplicable as it had not been made in accordance with s 42(5) of the CMSH Regulation, which provides that the site senior executive must consult with a cross-section of workers at the mine in developing the fitness provisions. The second path is under s 46 of the CMSH Regulation, which deals with health assessments. However, s 46 has no application to a health assessment in circumstances such as the present where the employer wishes to ascertain the fitness for work of an employee returning from injury. The third path is through s 39(1)(c) of the CMSH Act, depending on the construction of that provision. The fourth path depends upon whether there was an implied term in the contract of employment allowing the employer to require an employee to attend a medical examination. It is in this context that the latter two issues arose before the FWC.Construction of s 39(1)(c) of the CMSH Act The appellant submits that, contrary to the views of the FWC and the primary judge, s 39(1)(c) of the CMSH Act does not authorise an employer to direct that an employee attend a medical appointment or undergo an medical examination. He argues that the CMSH Act and the CMSH Regulation form a cohesive scheme such that the Regulation may be used to construe the Act, and that s 39(1)(c) must be read down to conform with the legislative scheme. The appellant relies on s 37(1) of the CMSH Act which states that if a regulation prescribes a way of achieving an acceptable level of risk, a person may discharge the person’s safety and health obligations in relation to the risk only by following the prescribed way. Section 46(2) of the CMSH Regulation provides for health assessments for employees to be carried out at specified times. The appellant submits that since the CMSH Regulation makes such provision, the effect of s 37(1) of the CMSH Act is that the employer is only obliged to comply with the CMSH Regulation by having health assessments carried out at the specified times in order to discharge its obligation under s 39(1). He submits that s 39(1) does not impose any further obligation on the employer and, consequently, the employer has no power to direct an employee to attend a medical examination outside the times specified in the CMSH Regulation.