Rochfort, Associates

Industrial Relations Advisers and Advocates, Contract Specialists,
Human Resource Management and Advice

A recurring issue amongst many of our clients is how to deal with a situation where an employee submits an ambiguous medical certificate. I discussed this topic in our December Circular last year. Quite often medical certificates claim that an employee is suffering from a “medical condition” or that they are simply “ill”, or “unable to perform their normal duties”. Doctors are quite often deliberately vague in order to protect their patient’s right to privacy under the legislation. Clearly a vague description of an individual’s illness can create problems for an employer, particularly where there is ambiguity regarding when they are likely to be able resume their normal duties or return to work.

Generally speaking, a medical certificate is considered to be a legal document, and should usually be accepted at face value. It can therefore be difficult to require an employee to provide further information regarding their condition, and then discipline them if they fail to do so. Some recent cases, however, highlight that there are acceptable circumstances where further medical information is required in order to support an employee’s claim for sick leave, as illustrated in Australian and International Pilots Association v Qantas Airways Limited.

In this particular case before the Federal Court, the Court found that the sick leave entitlements of an employee under statute, an enterprise agreement or an award, does not displace the contractual relationship, under which the employer can make the necessary business arrangements to adjust for the impact of an employee’s absence on sick leave and the employer’s obligations under work health and safety legislation.

The Court found that Qantas’ threat to take disciplinary action against the employee had he failed to cooperate with the Company’s requests for further medical information, did amount to adverse action against the employee, or otherwise threaten his rights.

The Federal Court concluded that, in circumstances where there is an indefinite and uncertain nature about the duration of the employee’s sick leave, additional information may be sought where this is necessary having regard to the employer’s operational arrangements and statutory obligations.

Clearly every situation regarding an extended sickness related absence from work is different, and therefore the appropriate course of action must be determined on a case by case basis. In general terms, however, should an employer require further information beyond what has been supplied in the medical certificates in order to plan for the future operational requirements, as well as meet its health and safety obligation , it is not improper to request such information. Nevertheless, it is most important to bear in mind that the only the necessary information be sought from the employee or doctor, as any request for information that goes beyond what is strictly necessary may be a breach of the Privacy Act (Cth). For assistance in dealing with extended sickness absences and ambiguous medical certificates, please contact our office.

Many of you may recall the tragic story of the deliberately lit fire at a nursing home in Quakers Hill that resulted in the deaths of 11 elderly residents. A nurse, Roger Dean, addicted to prescription medication was responsible for lighting the blaze and has since been sentenced to life imprisonment without parole after pleading guilty to 11 counts of murder.

The inquest into this fire has recently been completed and has produced findings with significant implications. It found that employers of health professionals must do background checks of prospective employees in order to prevent a similar tragedy occurring again.

The NSW Deputy Coroner Hugh Dillon announced his findings earlier this week. It was determined that Dean, whilst employed by a previous employer, was taken off night shift because of patient safety concerns. Dean had also resigned from another Hospital after an investigation was launched into the vandalism of an employee’s car, which Dean later admitted that he was responsible for. A friend of one of the deceased commented to ABC News “This should never have happened. A multi-million dollar company should not have hired this man, reference checks were not carried out.”

The inquest heard that Dean had exhibited signs of drug addition during his previous jobs as a nurse, but only the most cursory checks were made before he was employed at the Quakers Hill Home. Opal Aged Care has been criticized for their decision to hire Dean, however formal action against the Company has not commenced as yet.

This case emphasizes the need for thorough pre employment screening to take place before any hiring decision is made, particularly in roles where there is a health and safety risk to others around them. A poor hiring decision, such as the appointment of Dean, may result in tragic consequences, such as in the story mentioned above, or at the very least, have the potential to bring a Company’s name into disrepute.

Following an appeal before the Federal Court, a five-member bench has ruled that a Company was entitled to summarily dismiss an executive employee for serious misconduct that destroyed the relationship of trust between them, even though it had moved earlier to terminate his employment on six months’ notice.

The employee had argued before a local court that the Company had initially dismissed him under a clause in his employment contract that provided for termination on six months’ notice. He said the Company could not therefore switch to summary dismissal under another contractual clause.

The local court determined as the Company had lawfully terminated the executive’s contract under the notice provision, it could not then purport to rely on the summary dismissal clause.

The bench, however upheld the Company’s appeal against a local court’s ruling that the employee’s conduct had not justified summary dismissal, finding that three out of four of the Company’s allegations against the employee were on their own serious enough to warrant his immediate sacking. The Judges said “Apart from the breach of the CEO’s direction, each of the other classes of misconduct was deliberate, involved elements of dishonesty, and of its very nature struck at the heart of the trust relationship”.

Employers concerned about discovering serious misconduct after a lawful termination has taken place could mitigate this risk by including a contractual term entitling it to repayment of any termination monies. For advice about such a clause, or about dismissals in general, please contact our team.

Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20 (26 February 2015)

The FWC has ruled that a Company, who discovered pornographic images on an employee’s phone after he had already been terminated for poor sales figures, did have a valid reason for dismissing him, however “substantial” procedural deficiencies made the dismissal unfair.

The employee was dismissed without notice, citing his poor sales figures spanning more than a year, his “negative and apathetic” attitude, and his failure to provide monthly reports. After the dismissal had been carried out, the employee’s phone was checked for any missed messages and numerous pornographic images were found to be stored on it.

The FWC however determined that whilst the employee’s sales figures were poor, the figure alone would not have warranted his sacking, noting that his colleagues had also failed to meet their targets
It was found that the company engaged in a “substantial” denial of procedural fairness, noting that there was no single point at which the employee was given the benefit of a direct warning in relation to his unsatisfactory performance.

The Commission emphasized that the point of providing employees “at an early point” with concerns about their performance, was to give the individual concerned an opportunity to rectify the problem, and it was this area in which the particular employee had been “most seriously deprived”.

It was concluded that the dismissal was unfair, but no reinstatement order was made as the employee was not seeking it.

Byrnes v Tuftmaster Carpets Pty Ltd [2015] FWC 1039 (18 February 2015)
Many of you may have encountered situations at work where a conversation becomes heated and occasionally foul language may be used. Whilst it is unacceptable to swear at one another in the workplace, a recent decision before the Fair Work Commission demonstrates this type of behavior may not warrant summary dismissal. The case involved an employee who swore at his manager during a private telephone conversation.

Deputy President Wells stated “There is no doubt that workplaces are more robust in 2015, as they relate to the use of swearing, than they were in the 1940s. Further, I would not consider it uncommon for bad language to be used in the workplace in this or other similar industries”.

The Company gave evidence that the driver had previously received written warnings regarding traffic accidents, however the Commission ruled these were not relevant, because the Company had dismissed the employer over his conduct rather than his performance. Similarly to the case mentioned above, DP Wells stated that “procedural fairness is important and should not be lightly cast aside. Its proper application ensures a robust and just process for those involved”.

We recommend that advice is sought prior to making any decision regarding dismissal. The precedent for what is considered sufficient grounds to warrant summary dismissal is frequently changing, therefore making any decision without being fully informed of the correct process, including and any associated risks, could potentially result in a matter before the Commission.


Peter Rochfort
March 2015

Material in this Article is intended to contain matters which may be of interest only. The Material is not, and is not intended to be, legal advice.