The Federal Court in an appeal has upheld the right of an employer to give an employee an instruction to attend a medical examination by a doctor nominated by the employer to determine the employee’s fitness for work and to then dismiss the employee if he or she refuses. In doing so Justice Collier ruled that the instruction was a lawful and reasonable one which the employee had an obligation to comply with.
The employee’s legal team had relied heavily upon an argument to the effect that “It is a fundamental principle of the common law that in the absence of clear statutory, or other lawful, authority or excuse, no person may be requested to submit to a medical examination without his or her consent”.
The employer’s legal team relied for justifying the instruction upon sec 39 of the Queensland Coal Mining Safety and Health Act 1999 which required all persons associate with mine sites “to take any other reasonable and necessary course of action to ensure anyone is not exposed to an unacceptable level of risk.”
The judge held on this point that
“Examining these authorities, the following is clear:
o As a general proposition a person is not obliged to submit to a medical examination without his or her consent (Fernando, Hallstrom, Furesh). A forced examination of a person without the consent of the person is assault.
o Legislation can require a person to submit to a medical examination without his or her consent, however such legislation must be clear and unambiguous (Fernando, McNamara).
o A contractual right can be given to an employer to direct or order an employee to attend a medical examination (Fernando).
o Courts have power to protect the integrity of their own processes, and safeguard the administration of justice. In this respect, the Courts can make orders such as staying proceedings if a plaintiff refuses to undergo a medical examination (Starr). However this does not equate to a positive power in the Court to order a person to undergo a medical examination against their will.”
His Honour dealt with the legal principles as follows
The language of s 39(1)(c) of the Coal Act does not unambiguously entitle an employer to force an employee to undergo a medical examination against his or her will. Equally, however, in my view s 39(1)(c) entitles an employer to direct an employee to undergo a medical examination before allowing him to work, in circumstances where there are health or other concerns in respect of the employee which could result in that employee – or anyone else – being exposed to an unacceptable level of risk.
Grant v BHP Coal Pty Ltd (No 2) (2015)] FCA 1374 delivered (4 December 2015)