In a majority decision, the Full Court of the Federal Court of Australia has rejected a claim of unlawful adverse action brought by an employee who was summarily dismissed for improperly claiming sick leave – notwithstanding that, in fact, the sick leave was justified. The decision emphasises the centrality of the employer’s subjective reason for the action as the basis for determining liability.
The Fair Work Act 2009 (Cth) (the Act) makes it unlawful for an employer to take adverse action against an employee because of his/her possession or exercise of a workplace right – which includes any entitlement to paid leave in accordance with National Employment Standards.
The employer bears the onus of proving that it did not take the action because of the possession/exercise of the right.
The employer operated a mine.
The employee applied for annual leave on 24 and 25 April 2014. This was refused by the mine manager on account of staff shortages. The employee objected and said that he would take sick leave on those days and produce a medical certificate.
The employee went to his doctor, who issued a medical certificate stating that the employee would be unfit for duty on 24 and 25 April 2014. The employee was absent from work on those days.
The employer, after following certain steps in its discipline policy, summarily terminated the employee’s employment. The decision was made by the mine manager.
The employee, through his union, brought proceedings in the Federal Circuit Court for relief in respect of unlawful adverse action.
Federal Circuit Court
At the trial, the doctor gave evidence that the employee was exhibiting symptoms which were compatible with asthma exacerbation and a lower respiratory tract infection. The trial judge accepted this evidence.
The mine manager gave evidence of his reasons for deciding to dismiss the employee. The evidence, which was largely accepted by the trial judge, was to the effect that the employee had conducted himself in a manner which showed that he intended to be dishonest with his actions and to take sick leave when he was not in fact sick.
On the basis of this evidence, the trial judge ruled that the employment was not terminated for any reason associated with the employee’s exercise or proposed exercise of the workplace right of taking sick leave. The claim was dismissed.
The employee brought an appeal to the Full Court of the Federal Court.
Full Court Appeal
By majority, the Full Court found that the trial judge had not erred.
Whilst the dismissal was certainly connected with the employee taking sick leave, that did not necessarily mean that the employee was dismissed because he took sick leave. The word “because” in the statutory provision requires an enquiry as to the operative and immediate reason or reasons for the dismissal – in accordance with the reasoning adopted by the High Court in the Barclay case (which has been the subject of earlier blog posts). On the findings of fact made by the primary judge, the only operative and immediate reason for the dismissal was manager’s belief that the employee had acted dishonestly.
The dissenting judge found that the employee was dismissed because he exercised a workplace right (i.e. took sick leave to which he was entitled). Although the manager’s immediate, or conscious, motivation did not extend so far, the objective circumstances provided reasons which give context and meaning to what was done and which cannot realistically be separated, divorced or disconnected from the action.