The Full Federal Court has recently upheld the termination of
employment of an employee on sick leave in circumstances familiar
to many employers.
The employee was employed at a mine and rostered to work
nightshift on 24 and 25 April 2014. On 21 April 2014, the employee
applied for two days annual leave to cover those nightshifts. The
mine superintendent rejected the application for annual leave due
to a shortage of overall crew numbers on the nightshift. The
employee threatened to take the leave anyway and stated that he
would get a medical certificate as the employer would find it very
hard to challenge the medical certificate. The mine superintendent
replied that it was fine for an employee to get a certificate from
a medical practitioner. However, as the employee had already told
the employer that he was "going to be sick" and taken
sick leave, there would be a completely separate discussion based
on the discipline policy.
On 23 April 2014 the employee visited his General Practitioner
(GP) and received a medical certificate
not to attend work on the nights of 24 and 25 April 2014. The GP
prescribed antibiotics and certified that the employee was
exhibiting symptoms which were compatible with asthma exacerbation
and a lower respiratory tract infection. This medical evidence and
the certificate were accepted by the Court. The Court also found
that the employee was indeed ill on the 24th and 25th April
Upon returning to work, the employee was summoned to a meeting
with the employer to show cause why he should not be terminated for
After the meeting, the employer terminated the employee's
employment summarily on the grounds that:
the employee conducted himself in a manner which showed that he
intended to be dishonest with his actions and to take sick leave
when he was not in fact sick;
the employee was not unfit to work on the nightshifts of 24 and
25 April 2014;
the employee obtained a medical certificate because it was an
easier way to circumvent the refusal of his annual leave
the employee had not attended his rostered shifts;
the employee did not show any remorse for his conduct or
otherwise accept that his conduct was not appropriate; and
the employee displayed contempt and disdain for his employer
and its processes.
At trial, the primary Judge upheld the employer's decision
and accepted the employer's evidence that if the conversation
where the employee threatened to take sick leave if his annual
leave was not approved had not occurred, there would not have been
any issue with the fact the employee had taken sick leave.
The employee and the Construction, Forestry, Mining & Energy
Union (CFMEU) appealed on the grounds
that the employer had taken adverse action against the employee
the employee exercised his 'workplace right' to take
sick leave in contravention of the General Protections provisions
of the Fair Work Act 2009 (Cth); or
the employee was temporarily absent from work because of
illness or injury in contravention of section 352 of the Fair
Work Act 2009 (Cth).
Under both of the above provisions, it is presumed that an
employer took the action which is prohibited unless the employer
proves otherwise under section 361 of the Fair Work Act
Nonetheless, the Court accepted the mine manager's evidence
that he did not dismiss the employee because the employee was ill
or temporarily absent from work because the employer did not ever
believe that the employee was ill on the basis of the medical
certificate issued by his GP.
Accordingly, the termination was not for a prohibited reason
under the General Protections provisions of the Fair Work Act 2009
(Cth), even though the Court accepted that the employee was indeed
ill for the nightshifts that the employee did not attend.
This is a good result for employers who have good grounds to
genuinely believe that an employee is prepared to feign illness to
gain a medical certificate and take sick leave where annual leave
has been refused.
However, employers should tread carefully because the employee
in this case also brought a common law claim for wrongful dismissal
based on summary termination of his employment.
This claim was upheld because the Court accepted that the
employee was in fact ill and certified as ill, so wrongfully
dismissed at law.
[CFMEU v. Anglo Coal (Dawson Services) Pty Ltd 
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.Madgwicks is a member
of Meritas, one of the world's largest law firm
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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