In November the Federal Magistrates Court reinstated a potential Beauty and the Geek contestant to his position as a weather observer after upholding the adverse action claim he had brought against his employer, the Bureau of Meteorology.
The Bureau had dismissed the aspiring Geek for failing to perform his duties at work due to anxiety and stress, but meanwhile planning to appear on the reality television program. His employment was terminated on the basis of ‘non-performance of duties’.
The Bureau argued that the employee was not medically unfit to work, nor had he produced satisfactory medical evidence to explain his absence. The Court, however, accepted that the employee had provided a medical certificate that stated he suffered from an adjustment disorder and required leave because his work would aggravate his symptoms of anxiety and traumatic stress.
The issue for the Court to consider was why, on the one hand, the employee’s doctor certified him as unfit for work while, on the other, he was assessed to be ready, willing, and able to compete as a Geek on national television. The doctor stated in evidence, which the Court accepted, that the environment of Beauty and the Geek possibly could have been beneficial to the employee’s health, while work would have been detrimental.
The Bureau’s enterprise agreement provided that absence from work could be taken with satisfactory medical evidence. The Court interpreted this to be ‘objectively’ satisfactory evidence and therefore the question of whether the employer was actually satisfied with the evidence was immaterial.
The Bureau had sought to rely upon on a 2008 case involving a football fan whose employment was terminated after he provided a medical certificate and took sick leave only to fly from Melbourne to Perth to watch a football game. In that case, the Court dismissed the employee’s unfair dismissal claim.
The football case was distinguished, however, because of its unique facts - the employee had told his employer he intended to say that he was sick and attend the match and the medical practitioner who provided the certificate had a history of issuing false certificates. In the Beauty and the Geek case, the Court made it clear that the football case did not set a precedent allowing employers to ignore medical certificates that they do not agree with.
The Court commented that where the doctor is trusted and reputable, there is no reason to doubt the validity of the medical certificate certifying the employee actually is in ill health and that a dismissal by reason of absence from work may result in an adverse action finding.
Implications for employers
Employers who are concerned about the validity of medical certificates may wish to consider engaging their own medical professional to assess a medical certificate and the circumstances surrounding an employee’s illness to enable an objective assessment of an employee’s capacity to be made.
Employers should also be aware of the complexity of mental health issues. A simple medical assessment may not be enough to adequately assess complex mental illnesses that require ongoing assessment and treatment by medical professionals. Further, there may also be an issue of outside circumstances affecting the medical certificate which the employer is not aware.
Ultimately, it can be very useful at the outset of employment to include an appropriate clause in an employment agreement requiring the employee upon the request of the employer, to undergo a relevant medical assessment and to provide the employer with access to the results, to meet its obligations to provide a safe workplace to the employee and others and to ensure the employee can perform the inherent requirements of the role.