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By Angus Mackenzie, Lawyer

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It is broadly accepted that an employer can direct an employee to attend medical examinations and to answer questions as part of workplace investigations, so long as the direction is lawful and reasonable. Indeed, the idea that an employee can refuse to respond to his or her employer’s reasonable requests for information on the basis of a ‘right to remain silent’ is widely considered a to be ill-founded by employment practitioners and workplace investigators.

However, the recent decision of the Full Court of the Federal Court in Grant v BHP Coal Pty Ltd [2017] FCAFC 42 has cast some doubt over those simple propositions. So, what are the rules regarding medical examinations and requiring employees to participate in workplace investigations?


Lawful and Reasonable Directions

All contracts of employment include an implied term requiring the employee to obey certain directions given to them by the employer. Generally speaking, an employee must comply with the employer’s directions so far as they are both lawful and reasonable.[1]

Accordingly, an employee who does not comply with a lawful and reasonable direction will generally have breached the contract of employment. Indeed, disobedience of a lawful and reasonable direction, depending on the circumstances, can constitute serious misconduct. [2] ‘Serious misconduct’ is a shorthand way of describing misconduct that is sufficiently serious to warrant the employer’s dismissing the employee without notice.

These principles underpin accepted practice.

In particular, it is widely accepted that employers can rely on lawful and reasonable directions to require employees to attend medical examinations or answer questions as part of workplace investigations and refusal to comply may constitute a valid reason to dismiss the employee.

A recent decision of the Full Court of the Federal Court indicates the legal position may be more complicated.

Grant v BHP Coal Pty Ltd [2017] FCAFC 42 (‘Grant’)

The applicant in this case, Grant, was employed by BHP as a boilermaker. He injured his shoulder at work and took extended sick leave in mid-2012.

In April 2013, Grant was declared fit to return to work by his GP and orthopaedic surgeon. On Grant’s return to work, BHP informed him that he would need to see a doctor appointed by BHP before he could start work and he was sent home on full pay until an appointment could be arranged. An appointment was arranged for 17 April 2017.

Grant was unhappy with the decision to send him home.

On 17 April 2013, Grant’s Field Maintenance Superintendent, Gustafson, left a message on Grant’s phone directing him to attend the appointment and informing him that, if he failed to attend, it would be considered a failure to comply with a reasonable direction and may result in disciplinary action.

Grant did not attend the appointment.

BHP then conducted an investigation into Grant’s failure to attend the appointment. Grant refused to answer questions in the investigation interview unless they were put to him in writing.

BHP was not satisfied by Grant’s response to a notice to show cause why his employment should not be terminated and terminated Grant’s employment for failing to comply with lawful and reasonable directions.

Grant made an unfair dismissal application in the Fair Work Commission (FWC). Commissioner Spencer dismissed the application. Grant then appealed to a Full Bench of the FWC and was unsuccessful. Grant then applied to the Federal Court for review of the two FWC decisions and was unsuccessful. He then appealed that decision to a Full Court of the Federal Court.

That appeal was also dismissed. However, the Full Court made some significant observations regarding employers’ rights to require employees to attend medical appointments and answer questions in workplace investigations.

The Full Bench’s Decision

 Grant made two key arguments before the Full Bench.

Compelling Employees to Attend Medical Examinations

First, he argued that he had a fundamental right not to be required to attend a medical examination against his will. This right, he argued, was protected by the ‘principle of legality’.[3]

Against this, BHP argued that Gustafson had a legitimate concern about the risk of harm to Grant and others arising out of Grant’s shoulder injury if he returned to work before he was ready. Gustafson, as superintendent, had a duty to take any reasonable and necessary course of action to ensure that no one was exposed to an unacceptable level of risk at work under the Coal Mining Safety and Health Act 1991 (Qld)(CMSH Act). BHP argued that Gustafson’s duty under the CMSH Act prevailed over any right Grant had not to be required to attend a medical examination against his will in the circumstances.

The Full Court accepted BHP’s argument.

The Court refrained from expressing a conclusion as to whether BHP was entitled to require Grant to attend a medical examination against his will because of the implied term in the contract of employment requiring Grant to comply with all lawful and reasonable directions. It said it was unnecessary for the Court to decide this question because Grant was required to comply with Gustafson’s direction to attend the medical examination under the CMSH Act anyway. In other words, it left the question of whether an employee has a basic legal right not to be compelled to attend a medical examination when directed by his or her employer based on his or her general obligation to comply with lawful and reasonable directions to be decided in another case.

Self-Incrimination Privilege

Second, Grant argued he was not required to answer questions in the investigation interview because he was protected by the privilege against self-incrimination.

The penalty against self-incrimination has its origins in the criminal law. It has two principal purposes. First, it protects criminal defendants’ dignity by preventing a conviction ‘wrung out of the mouth of the offender’. Second, it upholds the principle that the person alleging that a crime has been committed must prove it. [4]

The privilege also applies outside the criminal law. For example, it applies to allow a person compelled to give evidence to the Australian Competition and Consumer Commission (ACCC) or the Australian Securities and Investments Commission (ASIC) to refuse to give that evidence. It also applies where the answer may expose the person giving it to the imposition of a civil penalty, such as a penalty for contravention of the Fair Work Act 2009 (Cth).

The prevailing view, however, has been that the privilege cannot be invoked by an employee to refuse to answer questions in workplace investigations.[5] Certainly, that was the view of the Full Bench of the FWC and the primary judge in Grant.

However, the Full Court held that self-incrimination privilege can apply to questions asked of an employee in a workplace investigation interview, though the Court did not make a finding on whether it applied to protect Grant in this case. It did not express a definite view because Grant did not raise the issue before the FWC or put enough evidence before the Full Court to allow it to determine whether and on what basis he invoked it.

So what does that mean for me?

Can I require an employee to attend a medical examination?

The decision in Grant does not overturn or cast specific doubt on the accepted principle that an employer can require an employee to attend a medical examination so long as the requirement is lawful and reasonable.[6] It rather exposes an argument based on the principle of legality that may be advanced and decided in a future case.

What is clear is that legislation such as the CMSH Act may provide a basis for concluding that a direction to attend a medical examination is reasonable and lawful. In Grant, the employer was able to rely on its duty to ensure Grant’s return to work did not create a risk to Grant’s health or anyone else’s and its right to require Grant to comply with health and safety instructions. On that basis, the direction to attend a medical examination was held to be reasonable and lawful.

Employers may take comfort from the fact that legislation similar to the relevant provisions of the CMSH Act is in force in all Australian jurisdictions.[7] Further, employers also have a common law duty to take reasonable care for the safety of their employees.[8]

So practically speaking, an employee would have serious difficulty challenging a direction to attend a medical examination where the employer requires the examination to reasonably satisfy itself that the employee’s safety, or that of someone else, would not be jeopardised by the employee’s returning or continuing to work.[9]

Can my employees refuse to answer questions in a workplace investigation?

On this issue, the decision in Grant has introduced a complexity that was not generally recognised.

The decision makes clear that self-incrimination privilege may apply to allow an employee to refuse to answer questions in a workplace investigation. That being the case, an employee may be able to refuse to answer questions where there is a real and appreciable risk of criminal prosecution if he or she answers, and he or she has a bona fide apprehension of prosecution on reasonable grounds.[10] It may follow that the same applies where the employee can point to a real possibility that to require them to answer may expose them to civil penalty proceedings.

How that principle plays out in practical terms will not be clear until the Courts give further clarity on the applicable law.

But it is clear, at least, that an employee will not be able to rely on self-incrimination privilege unless they assert their entitlement to do so and identify the precise basis on which they assert it. It will not be sufficient for an employee to refuse to answer questions unless they are put in writing or to simply assert that they have a ‘right to remain silent’; and it appears an employee will not be entitled to rely on the privilege unless they point to some real and appreciable risk of an identified kind of criminal prosecution or civil penalty.

Bartlett Workplace offers a full range of workplace investigation services including investigators, advice on investigations and processes, and training for workplace investigators and decision-makers. If you would like to discuss the workplace investigation needs of your organisation, please contact Victoria Laspas, Senior Workplace Investigator and Director of Communications and Government Relations at victoria@bartlettworkplace.com or on (03) 9603 5000.

[1] It may be more correct to say that an employee has an obligation to obey the employer’s directions about the performance of the contracted work so long as they are lawful, reasonable, consistent with the contract and within the scope of the employment: see, eg, Bayley v Osborne (1984) 4 FCR 141 at 145.

[2] See generally Barrett v Crown Street Women’s Hospital [1947] AR (NSW) 565 at 570.

[3] The principle of legality, broadly, requires legislation and general law doctrines to be presumed not to abrogate or curtail certain human rights or freedoms: see, eg., Coco v R (1994) 179 CLR 252, 437-8.  

[4] EPA v Caltex (1993) 178 CLR 477.

[5] There may have been exceptions to this widely accepted rule where criminal proceedings are pending or where employees have recently engaged in ‘whistleblowing’ conduct: see, eg, Murray Irrigation v Balsdon (2006) 67 NSWLR 73.  

[6] Although see footnote 1 above for two more general restrictions on the principle.

[7] See, eg., Occupational Health and Safety Act 2004 (Vic) s 25(1)(c) and s 28(c) of the model Work Health and Safety Acts.

[8] Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 at 197 (Barwick CJ).

[9] This, of course, is subject to the requirement that the direction is otherwise lawful, reasonable, consistent with the contract and within the scope of the employment.

[10] Grant v BHP Coal Pty Ltd [2017] FCAFC 42, [109].

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