In the recent decision of the Federal Magistrates Court in Marshall v Commonwealth of Australia, Federal Magistrate Whelan examined an unusual fact situation when addressing the question of when an employer can challenge medical evidence provided by an employee to justify absence from work.

Implications for employers

This case serves as an important reminder of the risks of disregarding medical evidence provided by an employee to justify an absence from the workplace, even where circumstances may lead the employer to question that medical evidence. Only in very rare cases will an employer be able to successfully challenge medical evidence.

The decision also provides guidance as to when a court may consider reinstatement of an employee to be an inappropriate remedy. In this case, despite evidence of the possibility of voluntary redundancies being offered to staff in similar positions to the employee, Mr Marshall, the Court nonetheless made an order of reinstatement. The Court accepted that such redundancies were a part of an employee’s life and instead focused on evidence showing that no involuntary redundancies had occurred or were contemplated.

Background: legislation

The Fair Work Act 2009 (Cth) (FW Act) prohibits employers taking adverse action against employees (including dismissal, alteration of the employee’s position to his or her prejudice, injuring the employee in his or her employment and discriminating between the employee and other employees) for reasons prohibited by the FW Act. Among other things, adverse action must not be taken because an employee has a workplace right (sections 340 and 341). Such rights include, among others, an entitlement to the benefit of, or a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body.

The FW Act does not forbid adverse action which is not motivated by a prohibited reason.

Background: facts

Mr Marshall was engaged by Bureau of Meterology (BOM) as a weather observer. In April 2011, he took paid personal leave as a result of an adjustment disorder, following alleged bullying during a training program in Melbourne and Hobart. In June 2011, he was certified by his doctor as fit to return to work with certain conditions. He was then directed to report for head office (rather than field observation) work at BOM's Brisbane office from 1 July 2011.

The position offered was considered by Mr Marshall and his treating practitioners to be unsuitable. His adjustment disorder was aggravated and he was certified by his treating practitioners as unfit for the proposed work. He took further paid personal leave.

In May 2011, Mr Marshall discussed with the producer the possibility of appearing on the TV show Beauty and the Geek. The filming was scheduled for late July 2011 and Mr Marshall later gave evidence that at the time, he intended to seek leave without pay if selected for the show. Mr Marshall completed a declaration for the TV show's producers within the period of his medical certificate, certifying that he was and had for past years been in “good health”. He later admitted this had been a misrepresentation, given his adjustment disorder.

On 25 July 2011, Mr Marshall told the producers he had decided not to participate in the show.

However, on 26 July 2011, BOM dismissed him for non-performance of duty. Mr Marshall then contacted the show to advise that he was available and did in fact participate (for completeness, Mr Marshall was coupled with former Miss FHM Australia, Emma Ceolin. The couple lasted three shows before being eliminated).

The employee’s case

Mr Marshall claimed that BOM had taken adverse action against him in breach of the FW Act, in that it had terminated his employment because he had exercised a workplace right. The right identified was Mr Marshall’s right under clause 70.7 of the Bureau of Meteorology Enterprise Agreement 2009-2011 to take a leave of absence with pay provided that leave credits were available; he was medically unfit for duty; and he produced satisfactory medical evidence to support the need for the leave (Clause 70.7 Leave).

Mr Marshall noted that he had at all times been medically certified as unfit for duty.

BOM’s position

Given the circumstances, BOM did not accept that Mr Marshall was medically unfit, or that he had produced satisfactory medical evidence. Accordingly, BOM did not accept that Mr Marshall was eligible to take Clause 70.7 Leave.

In making its argument, BOM sought to rely on the decision in Anderson v Crown Melbourne Ltd [2008] FMCA 152. In that case, an employee provided the employer with a medical certificate to justify a single day’s absence. It was clear that the employee was not in fact unwell, but had sought the certificate as he wished to be excused from work to attend a football game. It was ultimately held that the employer in that case was entitled to reject the medical certificate.

Decision

Federal Magistrate Whelan considered the matter and held that Mr Marshall was entitled to Clause 70.7 Leave. Accordingly, BOM had taken prohibited adverse action against him.

In reaching this decision, Her Honour noted the fact situation in Anderson differed markedly from that in the present case. In this case, Mr Marshall’s treating practitioner, Dr Thomson, provided a detailed medical report, including references to consultation with the employee’s treating psychologist, and gave evidence that:

  • Mr Marshall was medically fit to undertake field work in the close vicinity of his family, but was unfit to undertake work in an office environment consisting mainly of administrative tasks and located away from his home (as was the BOM Brisbane office); and
  • Mr Marshall was medically fit to participate in Beauty and the Geek, as this was unlikely to trigger his adjustment disorder symptoms and it may indeed be therapeutic.

Based on this evidence, Federal Magistrate Whelan reinstated Mr Marshall to his former position. In reaching this decision, she took into account (among other things) the fact that BOM was the only employer of meteorological observers in Australia and that no performance issues had been identified. She found it was not relevant that BOM was offering voluntary redundancies to observers, as there was no evidence of involuntary redundancies, the BOM was still recruiting for equivalent positions and Mr Marshall had shown willingness to improve his qualifications.

Federal Magistrate Whelan further ordered compensation for the earnings Mr Marshall had lost since the termination of his employment, holding that he had taken satisfactory steps to mitigate his loss whilst out of employment by retraining as a barista, despite the fact that he was unsuccessful in finding such employment.