Marshall v Commonwealth of Australia (Bureau of
Meteorology)  FMCA 1052
A decision by the Federal Magistrates Court in November 201
ordered an employer to reinstate an employee, Mr Marshall, after it
had dismissed him in circumstances where he had conflicting medical
certificates from the same doctor. Employers should seek additional
information when considering conflicting information before
deciding on the authenticity of the evidence.
Mr Marshall worked with the Australian Bureau of Meteorology.
From about March 2011, Mr Marshall was certified by his treating
doctor, Dr Thompson, as being fit for work subject to certain
conditions, which included a restriction from moving to Brisbane to
perform relief work.
The employer became aware that, in contrast to Dr Thompson's
opinion provided to them, on 22 July 2011 Mr Marshall completed a
participant declaration form for the reality television show
"Beauty and the Geek" in which he affirmed he
was in good health and denied suffering from mental health
On this same date, Dr Thompson certified Mr Marshall fit to
"fulfil the requirements of his contract with Beauty and the
Geek" (a view that appears to be supported by the presiding
Magistrate's comment that "It is not difficult, also, to
see why he was considered to be a suitable candidate for
'Beauty and the Geek'").
When Mr Marshall failed to attend for work in Brisbane on 8 July
2011, he was sent a "show cause" letter by the Bureau.
Further medical certificates were issued by Dr Thompson verifying
that there had been a further deterioration in Mr Marshall's
condition and he would be unable to return to his "usual
occupation" until up to 8 August 2011. On 26 July 2011, Mr
Marshall's employment was terminated on the ground of
"non-performance of duty".
Mr Marshall claimed that the Bureau took adverse action against
him by dismissing him because he had exercised a workplace right.
The workplace right relied upon was an entitlement in the
Bureau's Enterprise Agreement to paid sick leave when
satisfactory medical evidence had been produced.
The Bureau submitted that it was not bound to accept the
certificates of Dr Thompson and was entitled to question the
validity by considering all the surrounding circumstances (in this
case, Mr Marshall's declaration to the TV show and Dr
Thompson's alternate medical certificates).
The Court was satisfied with the evidence of Dr Thomson in which
he explained the reasons for the differing medical certificates,
that is, that the television show was a different environment to a
work posting in Brisbane. Dr Thompson gave evidence that the TV
show was not anticipated to trigger Mr Marshall's symptoms and,
in fact, could potentially assist him in a positive manner.
Lessons for employers
This is a case where at first glance, the employee had not been
truthful about his medical condition. Further, the employee's
doctor seemed to be having an "each way" bet. The Court,
however, confirmed the importance of objectively assessing medical
evidence provided by employees regarding their fitness for work. Dr
Thompson provided an appropriate explanation in this regard.
In the event that there are potential inconsistencies or issues
regarding an employee's medical evidence concerning their
absence, it would be prudent for employers to seek clarification or
an explanation before making a determination about the authenticity
of the evidence. Failure to do so may provide aggrieved employees
the opportunity to appeal or challenge any consequential
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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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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