FEDERAL COURT OF AUSTRALIA
Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374
Citation: Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374 Parties: DARRIN JAMES GRANT v BHP COAL PTY LTD and FAIR WORK COMMISSION File number: QUD 429 of 2014 Judge: COLLIER J Date of judgment: 4 December 2015 Catchwords: INDUSTRIAL LAW – review of decision of Full Bench of Fair Work Commission – whether jurisdictional error in decision of Fair Work Commission – whether applicant unfairly dismissed within meaning of s 385 Fair Work Act 2009 (Cth) – separate finding of fact – whether supervisor had role under s 26 Coal Mining Safety and Health Act 1999 (Qld) – whether direction to attend medical assessment following return to work after lengthy sick leave was unlawful – whether supervisor had authority to give direction to applicant to attend medical examination pursuant to s 39 Coal Mining Safety and Health Act 1999 (Qld) – whether applicant unreasonably failed to cooperate and participate in investigation – whether direction to attend medical assessment infringement of personal liberty – human rights concerning medical examinations – obligations of persons under s 39 Coal Mining Safety and Health Act 1999 (Qld) – Edwards v North Goonyella Coal Mines Pty Ltd [2005] QSC 242 – whether applicant entitled to refuse to answer questions on basis of self-incrimination – whether any errors of Fair Work Commission within jurisdiction Legislation: Fair Work Act 2009 (Cth) ss 385, 387, 394, 394(1), 545, 546, 562, 563, 604(1), 607(3)
Federal Court of Australia Act 1976 (Cth) ss 23, 32
Judiciary Act 1903 (Cth) s 39B
Coal Mining Safety and Health Act 1999 (Qld) ss 7, 26, 29, 30, 30(1), 30(3), 39, 39(1), 39(1)(a), 39(1)(c), 39(2), 39(2)(d), 40(2)(a)(i), 40(2)(b)(i), 41, 41(1), 42, 42(c), 55, 62, 394
Legislative Standards Act 1992 (Qld) s 4
Motor Vehicle Insurance Act 1994 (Qld) s 46A
Personal Injuries Proceedings Act 2002 (Qld)
Crimes Act 1900 (NSW) ss 353A, 353A(2)
Coal Mining Safety and Health Regulation 2001 (Qld) Ch 2 Pt 6 Div 1 and Div 2, ss 10, 42, 42(c), 42(7), 44, 46
Coal Mining Safety and Health Bill 1999 (Qld)Cases cited: Blackadder v Ramsey Butchering Services Pty Ltd (2002) 118 FCR 395
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Coco v The Queen (1994) 179 CLR 427
Collector of Customs v Pozzolanic (1993) 43 FCR 280
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148
Dafallah v Fair Work Commission (2014) 225 FCR 559
Edwards v North Goonyella Coal Mines Pty Ltd [2005] QSC 242
Fernando v Commissioner of Police (1995) 36 NSWLR 567
Fox v Australian Industrial Relations Commission (2007) 161 FCR 263
Hunter Resources Ltd v Melville (1988) 164 CLR 234
Jackson v State of Queensland [2005] QSC 161
Kirk v Industrial Relations Commission (2010) 262 ALR 569
Lee v New South Wales Crime Commission (2013) 251 CLR 196
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Details
- Case
- [2015] FCA 1374
- Decision Date
CaseChat Overview and Summary
In the Federal Court of Australia, Grant, the applicant, sought judicial review of a decision made by the Full Bench of the Fair Work Commission, which dismissed his appeal against a decision of the Commission that his dismissal by BHP Coal Pty Ltd, the first respondent, was lawful. The applicant contended that his dismissal was unfair within the meaning of s 385 of the Fair Work Act 2009 (Cth). The applicant claimed that he was unfairly dismissed because he was required to attend a medical assessment following his return to work after lengthy sick leave, and he refused to do so. The applicant argued that the direction to attend the medical assessment was unlawful, and he was not obliged to attend. The applicant further contended that his supervisor did not have the authority to give the direction under the Coal Mining Safety and Health Act 1999 (Qld). The applicant also argued that he was entitled to refuse to answer questions on the basis of self-incrimination. The court was required to determine whether the Fair Work Commission had made a jurisdictional error in its decision, and whether the applicant had been unfairly dismissed within the meaning of the Fair Work Act. The court was also required to consider whether the supervisor had the authority to give the direction to attend the medical assessment, and whether the applicant was entitled to refuse to answer questions on the basis of self-incrimination.
The court found that the Fair Work Commission did not make a jurisdictional error in its decision. The court held that the supervisor had the authority to give the direction to attend the medical assessment, and the applicant was not entitled to refuse to answer questions on the basis of self-incrimination. The court found that the applicant had failed to cooperate and participate in the investigation, and his refusal to attend the medical assessment was unreasonable. The court held that the direction to attend the medical assessment was not an infringement of the applicant's personal liberty, and the human rights concerning medical examinations were not engaged. The court further held that the obligations of persons under the Coal Mining Safety and Health Act 1999 (Qld) were not breached. The court also found that the decision of the Fair Work Commission was in accordance with legal principle.
The court dismissed the applicant's appeal and refused to make the declarations sought by the applicant. The court granted leave to further amend the amended originating application by the insertion of sub-paragraph (aa) into paragraph 1. The further amended originating application was dismissed.
The court found that the Fair Work Commission did not make a jurisdictional error in its decision. The court held that the supervisor had the authority to give the direction to attend the medical assessment, and the applicant was not entitled to refuse to answer questions on the basis of self-incrimination. The court found that the applicant had failed to cooperate and participate in the investigation, and his refusal to attend the medical assessment was unreasonable. The court held that the direction to attend the medical assessment was not an infringement of the applicant's personal liberty, and the human rights concerning medical examinations were not engaged. The court further held that the obligations of persons under the Coal Mining Safety and Health Act 1999 (Qld) were not breached. The court also found that the decision of the Fair Work Commission was in accordance with legal principle.
The court dismissed the applicant's appeal and refused to make the declarations sought by the applicant. The court granted leave to further amend the amended originating application by the insertion of sub-paragraph (aa) into paragraph 1. The further amended originating application was dismissed.
Orders
Orders of the court
1. Leave be granted to further amend the amended originating application filed on 27 March 2015 by the insertion of sub-paragraph (aa) into paragraph 1.
2. The further amended originating application referred to in paragraph 1 of these Orders be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Before turning to the application in this Court it is useful to examine the background facts, which are predominately undisputed.BACKGROUND The applicant was employed by the first respondent as a boilermaker at its Peak Downs Mine (the mine) in central Queensland from 25 November 2003 until he was dismissed on 17 May 2013. At the time of his dismissal he was an area delegate for the Construction, Forestry, Mining and Energy Union (CFMEU). On or about 21 October 2011 the applicant injured his shoulder while working at the mine. He subsequently sustained injuries to his shoulder a number of times between October 2011 and July 2012, both at work and outside working hours. On or about 23 July 2012 the applicant commenced sick leave in respect of injuries to his shoulder. He was absent from work for some nine months. On 12 September 2012 he underwent shoulder stabilisation surgery, performed by orthopaedic surgeon Dr Cutbush. He subsequently commenced a period of “intensive rehabilitation”, arranged by Dr Peter Bastable at the Mater Hospital in Mackay. In the Fair Work Commission the applicant gave evidence that the focus of his rehabilitation was to return him to his pre-injury capacity as a boilermaker. The applicant returned to work on 2 April 2013. He produced a medical certificate in the following terms: The evidence before the Fair Work Commission was that on 2 April 2013 the applicant was told by Mr William Gustafson, a Field Maintenance Superintendent at the mine, to see occupational therapists employed by the first respondent prior to commencing work. The applicant was told that this was in order to ascertain whether there were any “restrictions” on the applicant’s work capacity, and that it was necessary for the purposes of the “PPI policy”. The applicant was then sent home. The applicant claimed that on 10 April 2013 he received an email from Mr Gustafson, attaching a letter dated 9 April 2013, directing him to attend a medical appointment on 17 April 2013. The letter 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 ……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. Before the Fair Work Commission, Mr Grant said that following discussions with his representatives at the CFMEU, Mr Grant attended again at the mine on 16 April 2013 but was refused entry. Pursuant to Mr Gustafson’s letter the first respondent made arrangements for Mr Grant to attend the office of Dr Robert McCartney on 17 April 2013 for a medical examination. For reasons including that Mr Grant did not have documentation including x-rays (although such documentation was not essential), Mr Grant did not attend. Although the first respondent arranged with Dr McCartney to reschedule the applicant’s appointment to see him later in the day on 17 April 2013, the applicant did not attend.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
I consider that this aspect of the claim has no merit.Conclusion For the reasons I have given I am satisfied that the relief sought by the applicant in paragraphs 2, 3, 4 and 5 of his amended originating application should be refused.DECLARATORY RELIEF I am prepared to grant the applicant leave to amend his amended originating application by the addition of paragraph 1(aa) as set out earlier in this judgment, and as sought at the hearing. Reasons for this are that I am satisfied that:·ground 1(aa) raises nothing which has not been raised in respect of the decision of the Fair Work Commission; and·I am satisfied that the first respondent was in a position to deal with this aspect of the claim. However as I have made clear, I consider that the decisions of the Fair Work Commission (both at first instance and in the Full Bench) were not only within jurisdiction, but in accordance with legal principle. In these circumstances, I am not prepared to make the declarations sought by the applicant in paragraph 1(a), (aa), (b) and (c) of his amended originating application.
Ratio Decidendi
Legal Principle Established
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