Fake Medical Certificate – A Sure Way to Byrne Your Fingers

Quite frequently, an employer has valid reasons to believe an employee is requesting sick or personal leave without a legitimate reason for it.

The recent Full Federal Court of Australia decision involved a dismissal of an employee following a period of sick leave.

The Facts

Mr Byrne applied for annual leave on 24 and 25 April 2014. His employer, Anglo Coal, rejected this application.

When Mr Byrne met with his mine superintendent, the superintendent stated the rejection was declined “due to overall crew numbers”.

Evidence was put forward and accepted by the Court that Mr Byrne said in reply words to the effect of: “Fine, I’m going to be sick anyway”.

It was also accepted that Mr Byrne exhibited signs of being agitated but not unwell on that day.

Mr Byrne consulted his doctor who prescribed medication and issued a medical certificate stating he was unfit for work on 24 April and 25 April 2014. The Court accepted evidence from Mr Byrne’s doctor who stated Mr Byrne was exhibiting symptoms compatible with asthma exacerbation and lower respiratory tract infection.

Mr Byrne did not return to work until 30 April. A meeting was held between him and Anglo Coal’s various senior managers.

Mr Byrne received a show cause order on 1 May and on 12 May his employment had been terminated summarily (that is, immediately and without notice) because of serious misconduct.

Mr Byrne and his Union commenced legal proceedings in the Queensland District of the Federal Court of Australia against Anglo Coal.

Mr Byrne alleged that his employer took adverse action against him because he was exercising his “workplace right” of entitlement to personal leave and absence from work because of illness.

The Court’s Decision

The trial judge in the Federal Court of Australia handed down a judgment in favour of the employer. The findings were effectively summarized by Jessup J’s reasons in the appeal judgment as follows:

her Honour held that Mr Byrne had been dismissed because Mr Power believed that Mr Byrne had conducted himself in a dishonest manner by planning to take sick leave when he was not sick, by threatening to use a medical certificate as a justification for taking annual leave which had been refused him, by obtaining that medical certificate to circumvent the respondent’s refusal of his annual leave request, by persuading Dr Farahmand to issue a medical certificate in reliance on a description of symptoms, and by disingenuously claiming that his original application for annual leave had been to assist the respondent in relation to maintenance of low absentee statistics and/or had been pursuant to a practice in respect of taking annual leave when sick rather than sick leave

This decision was then appealed by Mr Byrne and his Union to the Full Federal Court of Australia. The basis for the appeal was two points, namely:

  1. No evidence was led from the human resources staff of the employer involved in the decision making process; and
  2. The evidence of the decision maker of the employer should not have been accepted, because there were facts that showed the employer would not be able to rebut the presumption that adverse action occurred.

The majority of the Full Federal Court of Australia found in favour of the employer (with one judge dissenting).

The reasons of the Full Federal Court were complex but the crucial position accepted by the majority was that the termination was not on account of Mr Byrne’s sickness or a workplace right, but rather, the dishonesty of Mr Byrne.

Our Comments

The decision to terminate an employee on the basis of dishonesty is clearly not one to be made hastily by an employer, particularly where the suspicions of dishonesty overlap with illnesses or other workplace rights.

Fortunately for Anglo Coal, the majority of the judges accepted the evidence in its favour. However, the comments of the dissenting judge highlight that such terminations are not always as clear cut as they appear.

If you are terminating an employee, we recommend that you consider taking legal advice and conducting thorough investigations, to minimise the risk of an employment law claim.

If you are an employee that has been terminated on what you feel to be harsh, unjust or unreasonable terms, or adversely (that is, for exercising a workplace right such as leave entitlements or discrimination) you may have rights under Employment Law.

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