Australia: When can employment be terminated for absence from work due to injury or illness? When can you terminate a malingerer?

Last Updated: 9 February 2013
Article by Nicole Dunn

Employers, regardless of any suspicions, should be very careful when considering termination of an employee whose absence due to illness is supported by medical opinion.

Injury/Illness and Dismissal

The Fair Work Act 2009 ("the Act") makes it unlawful for an employer to dismiss an employee because of a "temporary" absence from work through illness or injury (section 352). The absence will be deemed "temporary" if the employee provides a medical certificate within a reasonable time or otherwise complies with any relevant notice and evidential requirements in the National Employment Standards ("NES"), an award or agreement. However, the absence ceases to be "temporary" if it exceeds 3 months or where the employee's total absences over a 12 month period exceed 3 months, not counting time on paid personal/carers leave.

Importantly, even if an employee's absence due to an illness or injury continues until it is no longer "temporary" that does not necessarily mean an employer may terminate the employee's employment without consequence. The employee's long term lack of fitness to fulfil their duties may well provide a reasonable ground for their termination but this cannot be automatically assumed, and all of the usual considerations regarding dismissal still apply.

The decision of Federal Magistrate Dominica Whelan in Marshall v Commonwealth of Australia (Represented by the Bureau of Meteorology) highlights the importance of employers appreciating that an employee may be unfit to perform their work duties while remaining fit to undertake other activities, and demonstrates the caution employers need to exercise when they suspect an employee of malingering.

Mr Marshall was an employee of the Bureau of Meteorology (BoM) who alleged he was subjected to bullying and harassment resulting in him going on personal leave due to stress. His entitlement to personal leave was supported by medical evidence from his GP.

Mr Marshall had the previous year applied to be a contestant on reality television show Beauty and the Geek and while on stress leave in May 2011 was contacted and asked if he would be interested in participating in an upcoming series. Mr Marshall had discussed his participating in the show with his GP who had certified him fit to meet his contractual requirements to participate in Beauty and the Geek. Mr Marshall's GP gave evidence that he thought "going on the show wouldn't necessarily trigger or aggravate [his] symptoms".

Mr Marshall was seen by the Australian Government Medical Officer (AGMO). The conclusion of the AGMO's report is not described in the judgment, but following a meeting between Mr Marshall and BoM to discuss the report Mr Marshall was directed to resume work at the Brisbane Regional Office on 8 July 2011.

On 5 July 2011 Mr Marshall saw both his psychologist and his GP. The GP issued a medical certificate dated 6 July 2011 stating that Mr Marshall was suffering from:

"A recurrence of traumatic stress symptoms relating to his recent anxiety state as documented in previous correspondence... He will be unfit to continue his usual occupation – but would be fit for modified duties doing field work and located in Victoria or near area closer to home in neighbouring states as part of a planned Return to Work (RTW) Plan for the period 5 July 2011 to 23 July 2011 inclusive...Due to his current state of health I have advised him not to go to Brisbane due to the work not being as we had advised and note that the work doctor – AGMO – had concurred with the type of RTW Plan both I and [Dr] S.McEwan had recommended."

On 8 July Mr Marshall failed to attend for work and was then issued with a show cause letter. Mr Marshall did not respond to this letter. Mr Marshall's employment was terminated on the ground of non-performance of duty.

BoM suggested the certificates issued by Mr Marshall's GP certifying him unfit to perform his duties at BoM but fit to participate in Beauty and the Geek was evidence of collusion between Mr Marshall and his GP. Alternatively, BoM alleged that Mr Marshall had manipulated both his GP and psychologist into believing he was suffering a recurrence of symptoms.

Federal Magistrate Whelan did not accept there had been collusion, and stated that Mr Marshall "did not have the sophistication necessary to manipulate both [his medical advisers].." Further, that there was no evidence that Mr Marshall's GP was dishonest.

Federal Magistrate Whelan held:

"I am satisfied that the medical evidence was sufficient to establish that the Applicant was 'medically unfit' to attend for work in Brisbane on 8 July 2011 or at any time up until his dismissal by the Respondent. I am further satisfied the medical certificates supplied objectively constituted satisfactory medical evidence of his medical unfitness."

The Magistrate held BoM had taken adverse action against Mr Marshall in dismissing him and ordered reinstatement and compensation for earnings lost between the termination and the judgment.

Summary – warning to employers

Even where employers have doubts about the honesty of an employee's alleged injury or illness, extreme caution should be exercised by employers who are considering terminating the employee's employment for failure to perform duties due to a temporary absence from work. Employers should first consider whether there is convincing evidence of malfeasance, and/or medical evidence that overwhelmingly contradicts the medical evidence in favour of the employee.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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