22 Nov 2012
The beauty, the geek, and the adverse action claim
by Shae McCartney, Andrew Wydmanski
Employers who act contrary to a medical certificate may be at significant risk of adverse action claims.
In Marshall v Commonwealth of Australia (represented by Bureau of Meteorology)  FMCA 1052, a Federal Magistrate found that the Bureau of Meteorology (BOM) took adverse action against an employee when it dismissed the employee for failing to report for and perform his work duties. The employee had provided a medical certificate stating that he was unfit for duty due to adjustment disorder.
BOM however, rejected the medical certificate because in the period that would be covered by the medical certificate, the employee had applied to be a contestant on the TV series Beauty and the Geek and had told the show's producers that he had not and was not suffering any mental illness.
The employee's sick leave and application to be on reality TV
Adam Marshall was employed by BOM as a weather observer. Adam took sick leave following alleged bullying and was directed to report for work at BOM's Brisbane office. The direction to work in Brisbane allegedly aggravated Adam's condition and his treating psychologist and doctor diagnosed adjustment disorder.
In a medical certificate, Adam's doctor stated
"He will be unfit to continue his usual occupation – but would be fit for modified duties … located in Victoria or near area closer to home … for the period 5 July 2011 to 23 July 2011 inclusive."
In July 2011, Adam was contacted by the producers of the TV show Beauty and the Geek and asked to participate in the 2011 show (he had applied to go on the show in 2010). Adam completed a declaration for the TV show's producers on 22 July 2011 (within the period of his medical certificate). In answer to the question "are you now and have you been for some years past in good health" to which Adam answered "yes".
Adam did not proceed with the TV show and obtained a further certificate extending his sick leave to 8August 2011. BOM dismissed him for non-performance of work duty.
The Enterprise Agreement's terms on sick leave
A provision in the BOM's Enterprise Agreement relating to sick leave provided that:
"When an employee is medically unfit for duty, leave of absence with pay may be granted subject to available credits on production of satisfactory medical evidence."
Adam had available credits, but BOM claimed that the medical certificate was not satisfactory medical evidence relying on the 22 July declaration by Adam to the Beauty and the Geek producers that he was in good health.
What the Court had to decide
The primary issue for the Federal Magistrates Court was whether Adam's medical certificate was "satisfactory medical evidence", as required by the Enterprise Agreement. This in turn determined whether Adam had a "workplace right" for the purposes of the adverse action provisions in section 340(1) of the Fair Work Act 2009 (Cth) – the workplace right being the entitlement to leave of absence under the Enterprise Agreement.
What the Court decided
The Court held that the medical certificate was sufficient medical evidence. BOM unsuccessfully tried to draw parallels to the case of Anderson v Crown Melbourne Ltd  FMCA 152. In Anderson a worker told his employer he would take a "sickie" to see an interstate football match, and had been warned against doing, obtained a medical certificate to cover his absence. Crown Casino successfully defended its decision to dismiss the worker.
Federal Magistrate Whelan noted the unique facts in Anderson and held that the case "does not represent judicial carte blanche for employers to ignore medical certificates issued by registered medical practitioners." Adam's doctor had provided detailed medical certificates which referred to Adam's condition and his assessment of what would be appropriate. The medical certificates were not mere one-liners.
FM Whelan accepted that Marshall had lied to the producers of Beauty and the Geek rather than to BOM, and that he did so because he was embarrassed by his adjustment disorder and because he was eager to appear on the show. She noted that she recognised why he was a good candidate for the show. This did not mean however, that Adam misled his employer or his treating doctor and psychologist.
FM Whelan ordered BOM to reinstate Adam and to pay him the value of the earnings he had lost (salary of $75,010.48 less income earned and termination pay of $60,550).
Employers must be very cautious before rejecting an employee's medical certificate as satisfactory medical evidence. Courts are generally reluctant to allow a doctor's medical opinion to be disregarded by human resources staff and to do so requires exceptional circumstances.
Employers who believe that an employee is being dishonest about his or her incapacity should consider requesting that the employee attend another doctor for an alternative opinion. The employer is likely to have to pay for the cost of obtaining the second opinion.
It is important to exercise care in concluding whether an employee's "out of work" activities are evidence that the employee is being misleading about their fitness (or unfitness) for work (particularly in psychological injury cases). There may be particular workplace circumstances or attributes that affect the employee's fitness for work that do not affect the out of work activity.
The paper trail in responding to these matters is, as always, vital when evidencing the justification for action taken. For example it may have be possible to actively manage an employee on performance issues and compliance with policy and/or code of conduct rather than on the basis of fitness for work.
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