Beauty and the Geek contestant's adverse action claim sets new precedent on reliability of medical certificates
In an important ruling on the weight HR practitioners should accord to medical certificates, the Federal Magistrates Court has reinstated a weather observer who was dismissed for planning to appear on a reality television program while absent on sick leave for anxiety and traumatic stress.
The employee was sacked by the Bureau of Meteorology (BoM) for allegedly providing unacceptable medical evidence for taking sick leave in July last year, when he planned to appear as a contestant on reality television program Beauty and the Geek.
The BoM relied on a medical assessment conducted by an Australian Government medical officer a month prior to the employee's dismissal, which found that he was medically fit to work.
However, the employee claimed he suffered from recurring stress-related symptoms, exacerbated by the BoM relocating him from his home in Victoria to an office in Brisbane, away from his family and medical support; and by assigning him administrative rather than field-work tasks.
The employee's Ballarat-based doctor certified that while the employee was unfit for work, he was healthy enough to participate in the show, because he believed the employee's adjustment disorder was triggered by the changes BoM had made to his work location and duties. The doctor, who had been treating the observer since he was a child, said he thought the show might be "beneficial" for his patient's mental wellbeing.
Federal Magistrate Dominica Whelan distinguished the case from the unique facts in Anderson v Crown Melbourne, warning that the 2008 case did not "represent judicial carte blanche for employers to ignore medical certificates issued by registered medical practitioners". Federal Magistrate Philip Burchardt in Anderson upheld the dismissal of a Crown Casino employee and "football fanatic" who obtained a medical certificate to take time off work to attend an AFL game.
Federal Magistrate Whelan said there was no evidence that the BoM employee's doctor was dishonest; he had treated the employee for nineteen years and had provided sufficient evidence to explain why he thought participation on Beauty and the Geek might benefit his patient.
The issue was complicated by the fact "the geek" had lied on an application to the show, saying he wasn't suffering any medical conditions. However, Whelan said the applicant didn't have "the sophistication necessary" to manipulate anyone involved. The magistrate was also impressed with the level of detail the doctor invested into his medical assessments, including steps to address his recurring condition, and criticised the BoM for rejecting the doctor's findings.
Federal Magistrate Whelan accepted that the BoM had taken adverse action against the employee and ordered it to reinstate him and compensate him for his loss, with the amount to be determined at a later hearing.
Workplace lawyer Peter Vitale, speaking in Smart Company magazine, says the incident serves as a lesson for employers that when terminating employees based on medical evidence, that medical evidence needs to be competent and in order.
"They didn't really dot their 'I's and cross their 'T's in challenging the medical certificate," he said. "Businesses need to ensure that they have all the proper evidence to enable them to do so."
Kelly Workplace Lawyers Principal Joseph Kelly, who represented the said "geek", observed after the verdict: "At its simplest, this is a decision about who is best to assess the medical condition of an employee – their doctor or their HR manager. It also makes clear that employees may be unfit for their normal employment duties, but perfectly fine for other activities - such is the nature of mental illness.
"If HR managers are unsure whether an employee is fit for work or not, the only avenue available to them is to seek further contemporaneous medical advice," Kelly said.