In a decision likely to gain more attention because of its novel facts than its legal principles, the Federal Magistrates Court has ordered the reinstatement of an employee who was terminated on the basis that the employer did not accept the veracity of the medical certificates provided. However, the case represents an important warning to employers about how ‘satisfied’ they must be in order to accept that an employee is medically unfit to work.
The decision on 19 November 2012 by Federal Magistrate Whelan, Marshall v Commonwealth of Australia (Represented by the Bureau of Meteorology)  FMCA 1052, involved an application by the applicant, Adam Marshall (the Applicant), under the general protection provisions of the Fair Work Act 2009 (FW Act).
The Applicant, who was engaged as a weather observer with the Bureau of Meteorology, alleged that the termination of his employment by the employer contravened section 340(1) of the FW Act, as it constituted adverse action by the employer because he had exercised his workplace right to take sick leave in accordance with an enterprise agreement, based on a diagnosed adjustment disorder.
The employer rejected this allegation, and argued that the Applicant was not medically unfit, or that he had not provided ‘satisfactory’ medical evidence, as at the same time he had advised the employer he could not attend work for normal duties, his treating doctors had certified him as fit to attend the auditions of the reality television show Beauty and the Geek.
The seemingly contradictory position, which included untrue statements from the Applicant to the television show that he had a ‘clean bill of health’, was explained by the Applicant’s doctor on the basis that ‘going on the show wouldn’t necessarily trigger or aggravate those symptoms’ and that ‘the environment of the ‘Beauty and the Geek’ would have been quite different and possibly could have been beneficial’.
In arguing that the Applicant was not medically unfit, or had provided satisfactory medical evidence, the employer relied on the decision in Anderson v Crown Melbourne Ltd  FMCA 152 (Anderson), where the Court disregarded the medical evidence that was provided by an employee, as it appeared that the evidence was a ‘sham’ and simply obtained to allow the employee to travel to Perth to watch a football game.
In the present case, the Court distinguished Anderson as being particular to its own facts, as it involved a calculated attempt to deceive the employer that the employee was medically unfit, when this was not the case.
The Court accepted as truthful and reliable the evidence of the Applicant’s doctor that the Applicant could be not fit for normal duties, but fit to audition for the television show, and did not accept the employer’s assertion that the Applicant deliberately manipulated his treating doctors into providing their diagnosis. On this point, the Court remarked that ‘it is not difficult, also, to see why he was considered to be a suitable candidate for ‘Beauty and the Geek’.
Given the finding that adverse action was taken in breach of section 340, the Court ordered that the Applicant be reinstated to his position (with no loss of pay), as there had been no other performance issues or reasons why he would not be able to continue in his role.
Novelty aside, the case presents a reminder to employers that establishing that medical certificates are a ‘sham’ remains very difficult, and, despite what they may privately believe about the ‘truthfulness’ of a certificate, it will only be in extenuating circumstances that a Court will be prepared to ‘look past’ the evidence of a medical practitioner who certifies that an employee is unfit.