Marshall v Commonwealth of Australia (Bureau of Meteorology) [2012] 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.
Background
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 issues.
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".
Decision
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 decision.
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.
