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Excerpt from this article first published in Human Resources Magazine, Issue 134 - 7 August 2007
The AIRC has found that an employee who took sick leave in breach of the employer’s leave policy was not unfairly dismissed, despite producing a medical certificate covering the absence.
The employer, Blacktown Workers' Club, had a long standing policy stating that annual leave, long service leave or unpaid leave will not be granted to any employee for the month of December as staffing levels need to be maintained during peak trading periods.
The employee, a doorperson at the Club, took long service leave from 1 November 2006 to 30 November 2006, however three days before he was due to return to work he obtained a medical certificate from a doctor in England citing anxiety and depression. He was certified unfit to work during the December period.
The employee's employment was subsequently terminated on the ground that the employee had intentionally breached the Club’s policy precluding the taking of leave during December.
The Club obtained a copy of the employee’s airline ticket, which showed that it was issued to the employee in August 2006, with a return date of 5 January 2007. The Club used this evidence to support its claim that the employee had intentionally absented himself from work during the Club's peak period.
Commissioner Harrison was required to consider whether the employee abandoned his employment and/or whether the termination was harsh, unjust or unreasonable. He found that the employee’s production of a medical certificate was consistent with an intention to return to work and accordingly there could be no abandonment. Despite this finding, he was satisfied that the employee acted in a premeditated manner to breach the Club’s leave of absence policies, and found that the termination of employment was not harsh, unjust or unreasonable.
Commissioner Harrison stated that whilst he did not challenge the credibility of the British doctor’s certificate, he noted that it was obtained one day after the employee should have been en route to Sydney.
Whilst in many cases it will be difficult for an employer to challenge a doctor's certificate, in some limited circumstances employers may look behind the certificate if there is a suspicion that it is being used for an improper purpose and there is reliable evidence to support the employee's wrongdoing.
Jason Donnelly
Special Counsel
