Three recent cases deal with the issue of dismissal and medical certificates.  In two decisions, the dismissal was upheld.  In the third decision, the dismissal was found to be unlawful.

 

In Tokoda v Westpac Banking Corporation, Westpac was found to have a valid reason for terminating the employment of a customer service employee who tendered a falsified medical certificate.  The employee, Ms Tokoda, had been employed by the bank for just over a year when, on Monday 12 September 2011, she informed her manager that she was unable to work due to illness.  The following day, Ms Tokoda informed her manager that she was still unwell and would probably not attend for work until the Thursday.  On the Wednesday, she delivered to the bank premises a document purporting to be a medical certificate dated 12 September 2011.  The medical certificate indicated that Ms Tokoda would be unfit for work for that week.

 

Ms Tokoda’s manager noted that the document Ms Tokoda had provided did not have a doctor’s Provider Number on it, so she called the doctor’s surgery to ensure that it was a valid certificate.  The doctor confirmed that he had not provided the medical certificate and he had not seen Ms Tokoda since 2009.  When Ms Tokoda was interviewed about the certificate, she denied that she had falsified the document.  She subsequently provided a response to the allegation in writing admitting that she had provided the false certificate and raising allegations of bullying against her managers.  An investigation into these allegations determined that they were unsubstantiated and that Ms Tokoda’s conduct regarding the medical certificate had been dishonest and fraudulent.  Ms Tokoda’s employment was terminated for serious misconduct.

 

Ms Tokoda lodged an unfair dismissal claim.  She claimed that the investigation into her bullying complaint had been deficient and that her employment had been terminated despite her having provided a valid medical certificate dated 25 September 2011 which stated that she was unfit for work until 25 October 2011.  Commissioner Deegan found that the termination of Ms Tokoda’s employment was fair in all the circumstances.  The Commissioner did not accept Ms Tokoda’s evidence that she had falsified the document as an act of desperation.  In determining the matter, Commission Deegan had regard to the fact that Ms Tokoda was employed in a bank, “a position requiring the highest standards of honesty and integrity.”  As a result, Ms Tokoda’s dishonesty had left the bank with “no option” but to terminate her employment.

 

In Walker v Bow Tie Removals and Storage Pty Ltd, Fair Work Australia upheld the dismissal of an administrative employee who obtained a medical certificate for sick leave rather than apply for annual leave to travel interstate.  The employee had bought airline tickets to attend a family wedding in Perth.  When the wedding was called off shortly before the date, the employee decided to travel anyway.  Rather than apply for annual leave, the employee obtained a medical certificate for the time she would be away.  The medical certificate allowed her time off to nurse a swollen leg.

 

The employee’s travel plans came to the attention of her employer because he saw the airline tickets when the employee printed them on a printer in the workplace.  When the medical certificate arrived, the employer instructed an IT specialist to retrieve emails relating to the employee’s travel arrangements from her work email.  The emails could be retrieved even though they had been deleted by the employee. In one of the “deleted” emails, the employee had admonished her son for sending the travel emails to her work email account.  The employer questioned the employee about her actions with regards to the medical certificate when she returned to work.  She was summarily dismissed on the basis that she had breached her duty of good faith to her employer.

 

Commissioner McKenna held that there were reasonable grounds (in the context of the employer being a small business and subject to the Small Business Fair Dismissal Code) for the summary dismissal of the employee.  These grounds were based on her breach of the implied terms of good faith, fidelity and trust.
These two unsuccessful unfair dismissal applications can be contrasted with the decision of the Federal Magistrates’ Court in Kavassilas v Migration Training Australia Pty Ltd.  In that case, Migration Training Australia (‘MTA’) was found to have acted unlawfully in dismissing its general manager after she took two days of sick leave in accordance with the entitlements in her employment contract.  The general manager had notified MTA that she was to be absent from work due to illness and that she intended to provide a medical certificate to cover her period of absence.  However, her employment was terminated before she had the opportunity to provide a medical certificate.

 

Federal Magistrate Smith was highly critical of the actions of the two directors in dismissing the general manager and noted that they had included “baseless grounds” for terminating the general manager in their letter of termination.  His Honour found that while he was unable to conclude whether the general manager’s absence because of illness was the true reason for her dismissal, it was clear that her taking of sick leave at least had an influence on the timing and manner of the directors’ decision to terminate her employment.  A penalty of $20,000 was imposed on MTA for dismissing the general manager while she was temporarily absent from work due to illness, in contravention of the Fair Work Act 2009 (Cth).  In addition to this penalty, his Honour ordered MTA to pay over $33,000 in compensation to the general manager, plus interest, in addition to half of her legal costs in the proceedings.

 

(Tokoda v Westpac Banking Corporation [2012] FWA 1262 | Walker v Bow Tie Removals and Storage Pty Ltd [2012] FWA 2851 | Kavassilas v Migration Training Australia Pty Ltd (No.2) [2012] FMCA 208)

 

 

Lessons for Employers

  • Be familiar with the form and features of a valid medical certificate.  If the authenticity of a certificate is in doubt, steps should be taken to verify the certificate with the doctor identified on the certificate.  The provision of a false medical certificate may be grounds for summary dismissal.
  • The dismissal of an employee while he or she is temporarily absent from work due to illness may result in a contravention of the Fair Work Act 2009.  The maximum penalty able to be imposed on a corporate employer for such a contravention is $33,000 (per offence).

 

 

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