Fit to Work? (Revenge of the Geek…)

Article originally published in January 2013

“Beauty and the Geek” is an Australian reality television show in which a group of male ‘geeks’ are paired up with female ‘beauties’ to participate in a series of challenges, with one couple ultimately being pronounced the winner and receiving a prize.

One such geek was Adam Marshall who was, prior to his participation in Beauty and the Geek, employed by the Bureau of Meteorology (“the BOM”).  Mr Marshall had been medically certified unfit to work at the time that he agreed to participate in Beauty and the Geek.  The BOM found out that he was participating in the show and terminated his employment, saying that if he was fit enough to participate in Beauty and the Geek, he was fit enough to work.

Mr Marshall claimed that the BOM took adverse action against him by dismissing him because he exercised a “workplace right”.  The workplace right relied upon was an entitlement to the provisions of a workplace instrument, namely the Bureau of Meteorology Enterprise Agreement 2009-2011 as varied under section 207 of the Fair Work Act 2009 (AE871544).  The relevant part stated:

70.7 When an employee is medically unfit for duty, leave of absence with pay may be granted subject to available credits on production of satisfactory evidence.

The case was heard in the Federal Magistrates Court in August 2012 and judgment delivered in November 2012.[1]

The case addressed the extent to which an employer is obliged to accept a medical certificate on face value and the extent to which it can, in the light of other circumstances, choose to disbelieve or disagree with it.

The court appears to accept that an employer is not required to blindly accept medical certificates as proof of the facts described in them.  The court did, though, consider the certificates to determine whether they constituted “satisfactory medical evidence”. It was satisfied that they were in that whilst Mr Marshall was “medically unfit” for work, he was not medically unfit to participate in “Beauty and the Geek”.

BOM was found to have taken adverse action against Mr Marshall and was ordered to reinstate him to his previous (or an equivalent) position, and compensate him for his lost earnings since termination.

It is worth noting that the medical certificates in this case were very detailed, specifically addressing which parts of his job were contributing to his inability to work.  The court specifically contrasted these certificates to, for example, “certificates of the one line variety, for example, ‘X is unfit to work from A to B’”.[2]

It does appear that employers are entitled to query the accuracy or applicability of a medical certificate where the circumstances allow.[3]  The BOM in this case failed to make the distinction between Mr Marshall’s unfitness for work and his unfitness to participate in Beauty and the Geek.  So whilst medical certificates are not proof in themselves of the facts contained therein, an employer should exercise caution before ignoring them.

For more information on this article or any other employment matters, please contact us on (08) 9321 3755.

[1] Marshall v Commonwealth of Australia (represented by the Bureau of Meteorology) [2012] FMCA 1052

[2] [at 86]

[3] See for example the exceptional case of Anderson v Crown Melbourne Ltd [2008] FMCA 152, relied upon by the BOM, where Mr Anderson had produced a medical certificate saying he was sick, having purchased a ticket and flights for a football match on the day of his ‘illness’, and having tried already to obtain leave for that day, and told his employer that he intended to take sick leave to go to the match and been warned against doing so.

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