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Adverse action: Employee reinstated after sick leave dismissal

A weather observer who was dismissed from his employment while on sick leave and planning to take part in a reality television show has been reinstated to his job by the Federal Magistrates Court. It found the man’s employer was wrong to reject the contents of medical certificates explaining his absence from work.

The employee saw his GP and a psychologist in April and May 2011 after struggling with the effects of previous bullying and harassment, and was granted sick leave. He was required to see an Australian Government Medical Officer in June, and after the officer’s medical report was considered, the employer ordered the man to resume work in July and relocate from Victoria to Brisbane.

A couple of days before the planned relocation, the employee saw his GP again, complaining of recurring headaches, dizziness and other health issues, which his GP diagnosed as a recurrence of traumatic stress symptoms. The GP issued a medical certificate declaring that the employee would be fit for modified duties based in Victoria as part of a return to work (RTW) plan, and should not relocate as planned.

When the employee failed to attend work as originally planned in Brisbane, he was sent a ‘show cause’ letter and his employment was terminated two weeks later due to “non-performance of duty”. The employer gave evidence that it disputed the validity of the GP’s July medical certificate, and that it was not bound to accept it.

At the same time, the employee was applying to be a contestant on the Beauty and the Geek television series. The employee and GP gave evidence that being on the program could have health benefits and assist in his recovery, with the GP declaring the employee was fit to take part in the program. The employee admitted he had not been completely frank in failing to disclose his medical situation on the show’s application form.

The employer gave evidence to the court that the employee’s willingness to spend up to eight weeks away from his family and support networks on the TV show showed there was no reason he couldn’t relocate for work, and he could have used rostered days off and flex time to return to Victoria to see his GP and psychologist.

However, Federal Magistrate Dominica Whelan found that the employee’s GP gave “cogent explanations” for the medical certificates he issued, providing reference to the employee’s condition and giving an assessment of what would be an appropriate next step.

“It would be difficult to contend that these certificates were not ‘satisfactory medical evidence’. It would appear that the (employer) did not accept the certificates because it did not accept that the (employee) was ‘medically unfit’,” Federal Magistrate Whelan found.

“The (employee) clearly was not frank with the producers of Beauty and the Geek. I accept that he did this because he was embarrassed by his condition and did not want to jeopardise his chances of being selected for the show. That does not, however, mean that the symptoms he exhibited to (the GP) and (the psychologist) were a charade.”

The employer’s actions constituted adverse action under section 340 of the Fair Work Act. Federal Magistrate Whelan ordered that the employee be reinstated, given the narrow scope of his work and his previously unblemished employment record.

Employers need to use caution in this area and cannot assume that because an employee has been declared unfit for work that they are unfit for other non-work related tasks or duties. VECCI is aware of instances where employees have called in sick for work and then been seen out shopping or going on holiday. While it is natural to assume they are not unfit for work in such cases, this recent decision suggests that in some cases it may be prudent to seek further information from the employee’s treating medical practitioner to assess whether the activities are inconsistent with the medical condition before making any decisions about disciplinary action. Another option is to seek an independent medical opinion.

This case demonstrates that employers cannot simply take action because they believe an employee is not genuinely unwell. Doing so can leave you at significant risk of legal action and damages or being forced to reinstate the employee.

Managing these situations properly can help eliminate any potential claims and protect your business.

VECCI’s workplace relations consultants can advise you on how best to manage situations like this and any other aspect of human resources and industrial relations, including avoidance and defense of adverse action claims. Click here for more information.

Submitted on Monday, 26th November 2012

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