In brief

The Full Federal Court has recently upheld the termination of employment of an employee on sick leave in circumstances familiar to many employers.

Background

The employee was employed at a mine and rostered to work nightshift on 24 and 25 April 2014.  On 21 April 2014, the employee applied for two days annual leave to cover those nightshifts.  The mine superintendent rejected the application for annual leave due to a shortage of overall crew numbers on the nightshift.  The employee threatened to take the leave anyway and stated that he would get a medical certificate as the employer would find it very hard to challenge the medical certificate.  The mine superintendent replied that it was fine for an employee to get a certificate from a medical practitioner. However, as the employee had already told the employer that he was “going to be sick” and taken sick leave, there would be a completely separate discussion based on the discipline policy.

On 23 April 2014 the employee visited his General Practitioner (GP) and received a medical certificate not to attend work on the nights of 24 and 25 April 2014.  The GP prescribed antibiotics and certified that the employee was exhibiting symptoms which were compatible with asthma exacerbation and a lower respiratory tract infection. This medical evidence and the certificate were accepted by the Court.  The Court also found that the employee was indeed ill on the 24th and 25th April 2014.

Upon returning to work, the employee was summoned to a meeting with the employer to show cause why he should not be terminated for dishonesty.

After the meeting, the employer terminated the employee’s employment summarily on the grounds that:

  • the employee conducted himself in a manner which showed that he intended to be dishonest with his actions and to take sick leave when he was not in fact sick;
  • the employee was not unfit to work on the nightshifts of 24 and 25 April 2014;
  • the employee obtained a medical certificate because it was an easier way to circumvent the refusal of his annual leave request;
  • the employee had not attended his rostered shifts;
  • the employee did not show any remorse for his conduct or otherwise accept that his conduct was not appropriate; and
  • the employee displayed contempt and disdain for his employer and its processes.

At trial, the primary Judge upheld the employer’s decision and accepted the employer’s evidence that if the conversation where the employee threatened to take sick leave if his annual leave was not approved had not occurred, there would not have been any issue with the fact the employee had taken sick leave.

The employee and the Construction, Forestry, Mining & Energy Union (CFMEU) appealed on the grounds that the employer had taken adverse action against the employee because either:

  • the employee exercised his ‘workplace right’ to take sick leave in contravention of the General Protections provisions of the Fair Work Act 2009 (Cth); or
  • the employee was temporarily absent from work because of illness or injury in contravention of section 352 of the Fair Work Act 2009 (Cth).

The Decision

Under both of the above provisions, it is presumed that an employer took the action which is prohibited unless the employer proves otherwise under section 361 of the Fair Work Act 2009 (Cth).

Nonetheless, the Court accepted the mine manager’s evidence that he did not dismiss the employee because the employee was ill or temporarily absent from work because the employer did not ever believe that the employee was ill on the basis of the medical certificate issued by his GP.

Accordingly, the termination was not for a prohibited reason under the General Protections provisions of the Fair Work Act 2009 (Cth), even though the Court accepted that the employee was indeed ill for the nightshifts that the employee did not attend.

Conclusion

This is a good result for employers who have good grounds to genuinely believe that an employee is prepared to feign illness to gain a medical certificate and take sick leave where annual leave has been refused.

However, employers should tread carefully because the employee in this case also brought a common law claim for wrongful dismissal based on summary termination of his employment.

This claim was upheld because the Court accepted that the employee was in fact ill and certified as ill, so wrongfully dismissed at law.

[CFMEU v. Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC157]

About the Author

Tim Greenall

Special Counsel
Commercially savvy with over 30 years of experience, Tim provides pragmatic employment advice to his clients.

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