Disabled for Work - but not as Contestant for Television Show

The following matter provides a salient reminder to employers for  the need to carefully consider and review all the evidence and circumstances available, before making a decision to terminate an employee who is unable to attend work due an illness or incapacity.

Background

Mr Marshall was engaged by the Bureau of Meteorology (the Bureau) as a weather observer. In early April 2011, Mr Marshall was certified unfit for work due to suffering from an adjustment disorder, traumatic stress symptoms and anxiety, and commenced personal leave whilst in Ballarat, Victoria.

In early July 2011, the Bureau directed Mr Marshall to resume administrative work in Brisbane as there was no field work available in Victoria. Mr Marshall's general practitioner certified him fit for modified duties undertaking field work but located closer to his home in Victoria or in a neighbouring state within Australia. Mr Marshall's general practitioner was of the view that he would be better suited to field work and closer to his family and support basis.

Prior to going on personal leave in April 2011, Mr Marshall had applied to be a contestant on the television show "Beauty and the Geek". In May 2011, Mr Marshall was invited to audition for the show. In the application form for the show, Mr Marshall denied that he was suffering from any health or mental disorders. Mr Marshall's general practitioner also supported his application to appear on the show as the "…environment of the 'Beauty and the Geek' would have been quite different and possibly could have been beneficial".

On 8 July 2011, Mr Marshall failed to attend work at the Brisbane office as directed, and the Bureau provided him with a 'show cause' regarding his failure to attend for work. On 12 July 2012, Mr Marshall attended his general practitioner who certified him unfit for work until 23 July 2012 and subsequently from 25 July 2012 to 8 August 2011. On 26 July 2011, Mr Marshall's employment was terminated due to 'non-performance of duty'.

The basis of Mr Marshall's adverse action claim

Mr Marshall lodged proceedings against the Bureau alleging that it took adverse action against him in terminating his employment due to his reliance on a workplace right provided under the Bureau of Meteorology Enterprise Agreement 2009-2011 (the Agreement).

The Agreement provision relied upon was the Personal/Carer's Leave provision which stated 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."

Mr Marshall argued that in accordance with this clause, he was entitled (he had a right) to be absent from work. He further argued that he had provided satisfactory medical evidence in accordance with the clause through the provision of the medical certificates from his general practitioner. As the Bureau terminated his employment due to the non-performance of work due to his absence from the workplace, it had taken adverse action against him.

The Bureau accepted that the medical certificates had been provided, but argued that it was entitled to disregard the certificates due to the surrounding circumstances in the matter. It further sought to contrast the medical certificates provided to the "Beauty and the Geek" against those given to the Bureau as they did not reconcile regarding Mr Marshall's capacity.

The decision

Federal Magistrate Whelan considered the certificates provided by the medical practitioner and determined that they provided considerable detail regarding the nature of Mr Marshall's inability to attend work and that they where not "of the one line variety, for example, 'X is unfit to work from A to B…' and consequently provided 'satisfactory medical evidence'.

Further while Mr Marshall may have exaggerated his inability to return to work in Brisbane, there was sufficient evidence to establish that he was medically unfit to do so.

Mr Marshall was reinstated to his prior position (or an equivalent position) and compensated for earnings lost by him since his employment was terminated.

Conclusion

This decision demonstrates thefar reaching implications of adverse action laws as well as the need for employers to exercise caution when taking action against employees who partake in recreational and other activities during periods of sick leave, which at first blush may appear inconsistent with the claimed incapacity to work.

If you would like more information about managing ill and injured workers, please contact National Workplace Lawyers on +61 2 9233 3989. 

National Workplace Lawyers

Note — this is for information purposes only and does not purport to be comprehensive or to render legal advice.