Dismissing an employee for pulling a sickie: employers beware

Workplace Relations 14 August 2017

Many employers would argue that pulling a sickie is ingrained in Australian culture. Employers are often sceptical about the reasons for an employee’s absence, especially when such absences fall repeatedly on a Friday or a Monday and no doubt ask themselves: is there anything I can do about it?

The Fair Work Act 2009 (Cth) prohibits an employer from dismissing an employee due to their temporary absence from the workplace due to sickness or injury.  An employee need only submit a medical certificate or statutory declaration as evidence of their ill health.

Does this mean that an employer can never question or take action against an employee for ‘pulling a sickie’ as long as their employee has provided a doctors note?

This question has been considered by the Courts with differing outcomes

Anderson v Crown Melbourne Ltd [2008] FMCA 152

Mr Anderson, an employee of Crown Casino was a ‘fanatical’ Essendon supporter. He took sick leave to fly to Perth to attend an Essendon match, and provided a doctors certificate for his absence upon his return.

The employee had told several co-workers of his intention to attend the game. His employer had also became aware of his intention.

The employee was questioned by his manager prior to his absence, who warned that misusing sick leave was very serious, and could result in termination. The employee responded by saying he would have a doctor’s certificate.

The employee did call in sick, and attended the game. He was subsequently terminated by Crown. The employee brought proceedings alleging his termination was in contravention of the Fair Work Act 2009.

The court found in favour of Crown, deciding the employee had been dismissed due to a misuse of sick leave entitlements, not due to a temporary absence because of illness.

Importantly, the Court warned that a medical certificate should (as a general rule) be accepted, and non-medically qualified persons should not, in the usual course of things, question a medical opinion. It went on to say that only in the most ‘unusual and exceptional circumstances’ would an employer be justified in not accepting the validity of a medical certificate.

The Court found this case was such an exceptional case as:

  • The employee had already purchased the match and plane tickets prior to attending his doctor;
  • On the day he took sick leave, the employee was in fact in perfect health;
  • Importantly, when attending to obtain the medical certificate, the employee had informed the doctor he wanted the medical certificate as he wanted to take the day off to attend the Essendon match.

Marshall v Commonwealth [2012] FMCA 1052

Conversely to Crown, in Marshall v Commonwealth the Federal Magistrates’ Court held that the existence of unusual circumstances did not give an employer the right to disregard a medical certificate.

Mr Marshall was employed as a weather observer with the Bureau of Meteorology. He had been absent from work due to an adjustment disorder. However, he was subsequently certified as medically fit to return to work in the Brisbane office by a doctor appointed by his employer.

Instead of returning, Mr Marshall obtained a further report from his own practitioner indicating that the Brisbane position was not suitable, and that the employee’s adjustment disorder had been aggravated. The practitioner provided the employee with a further certificate of medical unfitness.

Whilst still too unwell to return to work, Mr Marshall applied to take part in reality show “Beauty and the Geek,” and was accepted.  Mr Marshall intended to take leave without pay to appear on the show.

Although Mr Marshall subsequently decided not to appear on the show the BOM terminated his employment for non-performance of duty. As a result, Mr Marshall elected to take part in the show.

Mr Marshall then brought an action claiming he had been unlawfully terminated. In reply, BOM relied upon the decision of Anderson v Crown.

The court however found in favour of the employee and the Court ordered the employee be reinstated.

The Court warned against reliance upon Anderson v Crown, indicating the case was decided on very peculiar facts, and was not authority in favour of employers ignoring medical certificates.

Looking at the facts of the case before it, the court found that  the employees medical practitioner had provided a detailed and compressive medical report indicating the employee was unfit to return to work, but was sufficiently fit to take part in Beauty and the Geek (and this experience may have been therapeutic). There was also no evidence to suggest the employee’s medical practitioner had issued the certificate dishonestly, and the Commonwealth led no medical evidence in support of its position.

Lessons to be learned

  • A doctor’s certificate will be accepted as evidence of illness, and an employer must be able to prove otherwise if they want to discipline an employee for “pulling a sickie.”
  • Employers should rarely (if ever) rely upon their own opinion to not accept a medical certificate.  Unless you are a qualified medical practitioner, the Courts will not allow an employer to question a doctor’s opinion.
  • Employers must tread carefully if concluding activities engaged in by an employee outside the workplace are inconsistent with a certificate of medical unfitness. Once again, a lay opinion that an activity is inconsistent with a certificate of medical unfitness will usually not be accepted.
  • If you believe an employee is being dishonest about their medical incapacity, you should consider directing the employee to attend your doctor for a second opinion. If your position is that your employee was (in fact) medically fit to be at work while they were on sick leave, a prudent employer will not take action without a medical opinion to support of this position.

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