Australia Day is right around the corner. This year the public holiday falls on a Tuesday.  So who wouldn’t be tempted to turn the celebrations into a four day long-weekend, by ‘chucking a sickie’ in the great Aussie tradition on the Monday immediately prior?  Well, think again.  You might just find yourself out of work and left on the slag heap of litigation.

The Story

Stephen Byrne was employed by Anglo Coal at the Dawson Mine in Central Queensland. On 21 April 2014, he applied for two days annual leave to be taken on the Thursday, 24 and Friday, 25 April 2014 so he could take a long weekend over the ANZAC Day Break. When the manager refused the request due to insufficient overall crew numbers on those days, Mr Byrne said:

Mr Byrne:  Fine, I’m going to be sick anyway.

Mr Lawn:  Mate, you have asked for annual leave, it is not within the time period, it’s not approved.

Mr Byrne:  I will get a medical certificate. You will find that very hard to challenge.

Mr Lawn:  If you get a certificate from a medical practitioner, that is fine but you have already told me that you are going to be sick. If you take sick leave, we will have to have a completely separate discussion based on the discipline policy.

Coincidentally, Mr Byrne actually became ill on 24 April, with symptoms of asthma and a lower respiratory tract infection. He obtained a medical certificate covering the ‘sickie’ days. However, on return to work, he was sacked.

The First Case – Anglo wins

The first case was held in the Federal Court in March 2015. Mr Byrne claimed prohibited adverse action under the Fair Work Act and wrongful dismissal under his contract. The single judge held for Anglo Coal, accepting the employer’s evidence that they would not have terminated Mr Byrne for taking sick leave, if Mr Byrne had not threatened to ‘chuck a sickie’. Mr Byrne failed to show prohibited adverse action either on the grounds that Mr Byrne exercised his workplace right to take sick leave (s341 FWA) or for temporary absence due to illness or injury (s352 FWA).

Mr Byrne (courtesy of the CFMEU) appealed to the Full Federal Court

The Appeal Decision – Full Federal Court – Anglo wins again

The Court did not dispute that Mr Byrne was legitimately sick on the 24 and 25 April. However, it said the reasons for dismissal and the actual illness were different things.  There were two potential reasons for My Byrne’s dismissal:

• First, that Mr Byrne was dismissed because the manager believed he was dishonestly claiming sick leave when he was not sick; or
• Second, that Mr Byrne was dismissed because he had used sick leave.

The Court went with the first reason. There was a good basis for the employer’s belief.  The court said (by majority) that Mr Byrne was dismissed because he inappropriately claimed sick leave and had irreparably damaged his relationship with the employer.  There was no prohibited adverse action.

So what does this mean for Employers?

Employers who have good reason to suspect an employee is prepared to feign an illness to use sick leave may be able to terminate the employment and avoid an adverse action claim.

An employer’s genuine belief in employee dishonesty may be enough to warrant discipline, even if the belief is challenged by other evidence, such as a medical certificate.

Employers can, if they have evidence, challenge “dodgy” medical certificates.

Even if an employer successfully defends an adverse action claim, it might still lose:

• An unfair dismissal case (which the employee should have brought in this case and probably would have won), or
• A common law wrongful dismissal claim for summary termination of employment (which the employee did bring in this case and did win!)

And for Employees?

The lessons for employees, on the other hand, are to think twice before dishonestly ‘chucking a sickie’ this Monday, just to get an extra day off work, you might end up getting a much longer break, without pay; and remember that your legal strategy matters. Don’t choose adverse action (attractive as it is because compensation is uncapped) when unfair dismissal might be a better bet (even if compensation is capped at 6 months pay).

Want More?

Of course you do, so get legal advice before you sack anyone – speak with Peter McNamara.

Read the full case of Construction, Forestry, Mining & Energy Union v. Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC157 (5 November 2015) here: http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2015/2015fcafc0157