Council Human Resource departments will be interested to know that an employee who takes paid personal leave is not protected from disciplinary action associated with taking that leave simply because a medical certificate has been provided. Employers who wish to take disciplinary action against an employee who has attempted to take personal leave inappropriately, may be able to do so where there is evidence of dishonesty on the part of the employee.
In Anderson v Crown Melbourne Ltd  FMCA 152, the Applicant attended an interstate football match on 1 September 2007, between Essendon and West Coast. The Applicant's Employer at the time, Crown Melbourne Ltd, dismissed the Applicant as a result of his attendance at the football game, which required the Applicant to make a trip to Perth.
The Applicant claimed his dismissal contravened s 659 of the Workplace Relations Act 1996 and said his employment was terminated because of a temporary absence from work because of illness or injury which is prohibited by s 659. Crown Melbourne Ltd argued the termination was not unlawful. Burchardt FM agreed with Crown Melbourne Ltd on the basis that it was clear Mr Anderson was in good health at all times up to and including 1 September 2007, meaning his absence was not caused by illness or injury. Burchardt FM said in his decision that Crown Melbourne Ltd did not dismiss Mr Anderson because he was absent from work because of a temporary illness, but rather because he had misconducted himself in doing so.
In the case of Walker v Bowtie Removals and Storage Pty Ltd  FWA 2851, the Applicant chose to go down the route of taking sick leave rather than applying for annual leave, in order to travel to Perth for a family event. The Applicant obtained a medical certificate claiming her leg was infected in order to take sick leave. The event was subsequently cancelled, but the Applicant decided to travel anyway. The Employer suspected the Applicant was going on a holiday after she was seen printing airline tickets at the work printer. The Employer began IT investigations that showed the Applicant had deleted all emails about the holiday on her work computer, one of which reprimanded her son for sending details of the holiday to her work account.
Commissioner McKenna noted section 385 of the Fair Work Act 2009 , which states that a person will be found to have been unfairly dismissed if it is satisfied the dismissal was not consistent with the Small Business Fair Dismissal Code ("the Code"). It was undisputed that the business in question was a small business, and the Code states that it is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal.
The Commissioner concluded that in the context of the Code, it was fair for the Employer to dismiss the Applicant without notice or warning in circumstances where it was believed on reasonable grounds "going fundamentally to good faith, fidelity and trust" that the applicant's conduct was sufficiently serious to justify immediate dismissal.
On the other hand, there are some cases where unusual circumstances do not give the Employer a right to take disciplinary action. In Marshall v Commonwealth of Australia (Represented by the Bureau of Meteorology)  FMCA 1052, the Applicant brought a claim of adverse action against his Employer (BOM) when it dismissed the Applicant after he had planned to appear on a television show called Beauty and the Geek, despite his being on sick leave.
Federal Magistrate Whelan discredited parallels drawn to Anderson v Crown Melbourne Ltd noting that Anderson does not give Employers the power to simply ignore medical certificates issued by registered medical practitioners. Whelan FM further noted that the issuing doctor in this case showed no signs of dishonesty in issuing the Applicant with a certificate, ad that he clearly knew the Applicant well.
In Mr Robert Van Den Enden v Bechtel Construction (Australia) Pty Ltd  FWC 4377, the Applicant informed his Employer he would be leaving work early to join some other employees at the Gladstone races. When told this leave was unauthorised, the Applicant said he was "just sick" and left the workplace. Interestingly, despite significant scepticism on the part of the Employer, the Applicant was found not to have taken unauthorised leave on the basis that there was no evidence challenging the medical certificate.
The decisions noted above are helpful to Employers who wish to take disciplinary action against employees who attempt to take personal leave for invalid reasons. Although (generally) medical certificates are taken as evidence of an employee's incapacity to work, the abovementioned cases demonstrate that Courts are prepared to acknowledge that not all personal leave is taken in circumstances where the employee's leave is for genuine reasons. Employers can therefore challenge a medical certificate where there is reasonable cause to believe that the employee is acting in a manner which exceeds or abuses their right to personal leave. If an Employer wishes to challenge a medical certificate, this will usually involve requesting further medical reports.
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.