Is it advisable to question the employee about the symptoms of their illness in the hope of identifying some inconsistency in their story, or should employers simply chalk it up as one of the inevitable difficulties associated with operating a business that is reliant on a workforce? This article takes a close look at employers’ rights in relation to medical certificates with reference to the recent decision in Marshall v Commonwealth of Australia [2012] FMCA 1052 (Marshall). The Federal Magistrates Court decision clarified the extent to which employers are entitled to look beyond the face of a medical certificate that is produced as evidence of an employee’s unfitness for work. The facts in Marshall The applicant, Adam Marshall, was employed as a full time weather observer by the Bureau of Meteorology (Bureau) in March 2009. Marshall applied for and was accepted into the Australian Antarctic Program and completed the requisite training in February and March 2011. He was allegedly bullied and harassed by co-workers during the training period and subsequently developed an anxiety disorder. He commenced a period of personal (sick) leave in May 2011. Marshall received treatment from a general practitioner (Dr Thomson) and a psychologist (Dr McEwan). On 28 May 2011, the applicant attended an interview for the Beauty and the Geek television show while on sick leave. Dr Thomson believed that the show might have a beneficial effect on Mr Marshall’s mental health and certified that he was fit to satisfy his contractual responsibilities in respect of the show. The medical evidence Dr Thomson and Dr McEwan developed a return to work plan that involved a large proportion of the applicant’s duties being comprised of field work. The applicant’s fitness for work was also assessed by an Australian Government Medical Officer, however, the Bureau directed the applicant to assume an office-based position in the relief pool at Brisbane Regional Office on 8 July 2011. Dr Thomson certified that Marshall was unfit for work in the administrative role proposed by the Bureau, but “would be fit for modified duties doing field work” as was recommended by all of the health professionals involved in Marshall’s care. Marshall failed to resume work on July 8 2011. He withdrew as a contestant on Beauty and the Geek on July 25 2011 (although he went on to appear in the show following his dismissal) and was dismissed by the respondent later that same day. Exposure to liability Marshall claimed that he was subject to adverse action because he was dismissed for exercising a workplace right. The workplace right relied upon was an entitlement to take ‘leave of absence with pay’ when he was ‘medically unfit for duty’ in accordance with the provisions of the relevant workplace instrument. Marshall sought reinstatement to his position as a weather observer or compensation for future loss of wages. The Federal Magistrates Court decision In essence, the Bureau claimed that the court was not bound to accept the certificate of Dr Thomson and it was entitled to question the validity of that certificate with reference to the surrounding circumstances. Federal Magistrate Whelan made it clear that the Bureau was only entitled to challenge the legitimacy of Marshall’s reliance on the medical certificate to assert his workplace right (ie paid leave of absence) by establishing that one or more of the conditions of the workplace right (which are contained in the relevant workplace instrument) had not been satisfied. In this case, the applicant was entitled to paid personal leave if the following questions were answered in the affirmative: Was there satisfactory medical evidence of unfitness to work? Was the applicant in fact medically unfit for work? Was the medical evidence of unfitness to work satisfactory? His Honour held that ‘satisfactory evidence’ is to be determined according to an objective standard and does not impose a requirement on employees to produce medical evidence that is to the employer’s satisfaction. His Honour rejected the Bureau’s contention that the court was bound by the authority of Anderson v Crown Melbourne Limited [2008] FMCA 152. That case involved an employee who gave prior notice to his employer that he intended to produce a false medical certificate in order to attend a football match (the medical practitioner also had a history of issuing false medical certificates). His Honour held that unlike Anderson, there was no evidence of dishonesty.Dr Thomson had also treated Marshall since childhood, was familiar with his condition and had provided detailed reasons regarding the applicant’s fitness for the type of employment that was being offered by the Bureau. Was the applicant in fact medically unfit? With regard to whether Marshall was medically unfit for work in light of his application to appear on Beauty and the Geek, his Honour accepted Dr Thomson’s evidence that the applicant suffered from situational anxiety and the two projects involved ‘totally different environments’. It was therefore possible that the applicant was fit to participate in the television show but not to return to a metropolitan office environment that was similar to that which preceded the onset of his anxiety disorder. His Honour also accepted that Dr Thomson was unaware of the show’s eight week ‘lock down’ period from friends and family. He concluded that Marshall was in fact not medically fit for the administrative role proposed by the Bureau and the medical certificate issued by Dr Thomson constituted ‘satisfactory medical evidence’. Therefore, it was found that Marshall had been subject to adverse action and made an order that the applicant be reinstated as a weather observer at the Bureau. Conclusions Employers may occasionally find themselves doubting the genuineness of a medical certificate which certifies that an employee is unfit to perform some or all of his or her workplace duties. Although an employer may be privy to information regarding an employee’s behaviour outside the workplace that appears to support their suspicions, it is important that the following key points are kept at front of mind: Whether medical evidence is ‘satisfactory’ is to be determined objectively with reference to the level of detail, relevance and cogency of reasoning contained in the certificate; Employers must not take action (including terminating employment) based on their own assessment of whether an employee is physically or psychologically fit for the job; and Establishing that an employee is in fact fit for work (contrary to medical evidence) is reliant upon the production of competing expert opinions from other medical practitioners or health professionals. This story originally appeared in Inside Retail Magazine. The August/September issue, featuring exclusive coverage of the 2013 Westfield World Retail Study Tour is available from this week. For more information, click here. * Louise Houlihan is partner and head of employment and industrial relations at Cornwall Stodart. For further information regarding medical certificates and leave entitlements or for advice regarding lawful termination of employment, she can be contacted on (03) 9608 2273 or l.houlihan@cornwalls.com.au.