FWA: coal mine’s right to direct medical examination & to answer questions

Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374

Dowsett, Barker and Rangiah JJ

Background

The appellant was employed as a boilermaker at a mine in Queensland and in October 2011 he injured his right shoulder while undertaking work duties. In July 2012, the appellant further injured his shoulder while mowing his lawn. Subsequently, the appellant took extended sick leave.

The appellant returned to work in April 2013 and was requested by his employer to attend a medical appointment to determine the appellant’s work capacity. Dissatisfied with the need to attend, the appellant refused. At a subsequent meeting convened by the employer, the appellant refused to answer any questions unless they were put in writing.

In May 2013, the appellant’s employment was terminated based on, inter alia, his refusal to attend medical appointments and his refusal to participate in the meeting. The appellant applied to the Fair Work Commission for unfair dismissal based on whether the dismissal was, pursuant to s 385(b) of the Fair Work Act 2009 (Cth), harsh, unjust or unreasonable.

Previous decisions

The Commissioner at first instance found that the three reasons were valid reasons for dismissal. The Commissioner found that there was no legitimate reason for the appellant’s non-attendance for the medical appointments and his refusal to answer questions at the meeting was unreasonable and improper.

The appellant applied to the Full Bench of the Fair Work Commission, contending that the Commissioner erred in finding that Superintendent’s direction to attend medical appointments was lawful and reasonable. The Full Bench found that the Commissioner had not erred and that an employer had the power to require the appellant to attend medical appointments.

The appellant appealed to the Federal Court, based on jurisdictional error. However, the primary judge found that there was no error in the decision of the Full Bench and that the direction to attend medical appointments was lawful. The appeal is from that decision.

Grounds of appeal

The appellant submitted that s 39(1)(c) of the Coal Mining Safety and Health Act 1999 (Qld) (the “CMSH Act”), which requires a coal mine to take “any reasonable and necessary course of action to ensure anyone is not exposed to an unacceptable level of risk”, did not provide authority for the Superintendent to direct the appellant to attend medical appointments. Further, the appellant contended that the Full Bench erred in finding that privilege against self-incrimination did not apply to the interview conducted in April where the appellant refused to answer questions.

Consideration

Interpreting s 39(1)(c) of the CMSH Act, the Court held:

[76] … A literal or natural reading of the section would require a supervisor to take a course of action directing an employee to attend a medical examination when that course is reasonable and necessary to ensure that no one is exposed to an unacceptable risk of injury.

[77] Section 39(2)(d) of the CMSH Act creates an obligation on a coal mine worker to comply with instructions given for health and safety of persons given by, relevantly, a supervisor at the mine.  A natural reading of that provision would require that a coal mine worker comply with a supervisor’s direction, given for the health and safety of the worker or other persons, to attend a medical examination.

[83] Section 38 of the CMSH Act recognises that a regulation cannot prescribe a way to discharge a person’s safety and health obligation in relation to every risk to safety and health arising at a coal mine. Section 5 of the CMSH Regulation itself specifically provides that it does not deal with all circumstances that may expose someone to risk at a coal mine…

[84] Mr Gustafson identified a risk arising from the appellant’s return to work. That risk was potential harm to the safety and health of the appellant and others because of his injury. Mr Gustafson was obliged under s 39(1)(c) of the CMSH Act to take any reasonable and necessary course  of action to ensure that no one was exposed to an unacceptable level of risk…

[89] It is true that ss 39(1)(c) and (2)(d) of the CMSH Act do not declare in express terms that a coal mine worker may be required to undergo a medical examination.  However, as we have discussed, the language, objects and the statutory scheme make it clear that the legislature intended that a coal mine worker can be required to undergo a medical examination if it is reasonable and necessary to ensure that anyone is not exposed to an unacceptable level of risk…

As to whether privilege against self-incrimination applied to the interview, the Court found:

[106] Privilege against self-incrimination means that a witness cannot be compelled to answer questions that may show the witness has committed a crime with which the witness may be charged if the answers may place the witness in real and appreciable danger of conviction: Sorby v The Commonwealth [1983] HCA 10(1983) 152 CLR 281 at 294.

[107] The appellant’s argument is that if s 39(2)(d) of the CMSH Act, which requires a coal mine worker to comply with an instruction given for safety and health by a supervisor, applies, then a failure to discharge that obligation is potentially an offence under s 34. The appellant submits that he was protected by privilege against self-incrimination and was not required to answer questions at the disciplinary interview.  He argues that answering any questions about failing to attend a medical examination may have shown that he had committed an offence, and that his answers may have placed him in real and appreciable danger of conviction.  He submits that he was entitled to refuse to answer his employer’s questions and, therefore, his refusal to answer questions was not a valid reason for his termination.

[108] The respondent submits that the appellant had no privilege against self-incrimination “because that privilege is not available in the sphere of employment”. That proposition is too wide. It is established that privilege against self-incrimination is capable of applying in respect of questions asked of an employee by an employer: Police Service Board v Morris [1985] HCA 9(1985) 156 CLR 397 at 403, 408 and 411. In the present case, the applicant’s failure or refusal to attend the appointments with Dr McCartney appeared inconsistent with his obligation under s 39(2)(d) of the CMSH Act and exposed him to a penalty for an offence against s 34(1). Privilege against self-incrimination was at least capable of applying to questions asked of the appellant in the workplace interview.

 

[109] In considering whether privilege against self-incrimination applies, the test traditionally applied is whether the person claiming the privilege genuinely and reasonably apprehends a danger from being compelled to answer the question objected to: Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412 at 421-422. The claimant must show that there is a real and appreciable risk of criminal prosecution if he or she answers, and that he or she has a bona-fide apprehension of that consequence on reasonable grounds: Re Australian Property Holdings (in liq) No 2 [2012] VSC 576(2012) 93 ACSR 130, [115], Anderson v Australian Securities and Investments Commission [2012] QCA 301 at [22]. A real and appreciable risk does not exist if a witness’ prior statements have already exposed the witness to a risk of prosecution where giving answers will not lead to any increase in jeopardy to which the witness is already exposed: Gemmell v Le Roi Homestyle Cookies Pty Ltd (in liq) [2014] VSCA 182 at [87]; see also Microsoft Corporation v CX Computer Pty Ltd [2002] FCA 3(2002) 116 FCR 372 at [41].

 

However, as the appellant did not raise during the interview that he was claiming privilege against self-incrimination and when the issue was before the Commissioner at first instance, the appellant gave evidence demonstrating he did not “genuinely apprehend a danger from being compelled to answer the question he was asked in the interview”. The appellant did raise the issue before Commissioner and Court found it did not have all the factual circumstances to make a determination of the issue and declined to do so “in a vacuum of such facts”.

The appeal was dismissed.

David Cormack – Brisbane Barrister & Mediator

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