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“Geek” reinstated after sick leave found genuine

A Bureau of Meteorology (BoM) employee who was dismissed for participating in a reality television show while on stress leave has been reinstated.

The employee, M, was employed by the BoM as a field officer in 2009. In 2011 he commenced training for the Australian Antarctic program. During this training he felt bullied and harassed and was withdrawn from the program. His next posting was to be in Wagga Wagga in April 2011 but shortly before he was due to commence that posting he applied for stress-based sick leave with a certificate from his GP.

During his sick leave he continued to consult with his GP, his psychologist and also saw the Australian Government Medical Officer (AGMO). M was due to commence a posting in Brisbane, in a desk-based role, in July 2011. M did not take up that posting either, presenting a medical certificate stating he was still not fit for work. Of particular note was the fact that he was extremely anxious about desk-based work, as opposed to field work. It was desk-based work that triggered his anxiety due to the alleged bullying. M requested field work but was told none was available.

During this time M was in discussions with the producers of “Beauty and the Geek”, a reality television show. He had auditioned to participate in 2010 but had pulled out due to work commitments. The producers contacted him asking if he would like to be considered for the 2011 production. M had discussions with the producers but ultimately stated he was unavailable for the program.

In July 2011, after discussions with M, his GP, psychologist and the AGMO about his fitness for duty the BoM dismissed M on the grounds of non-performance of duty. The AGMO believed M was fit for duty while M’s treating doctor provided him with certificates stating that he was not fit for a desk-based role. Following the dismissal M contacted the producers of “Beauty and the Geek” and informed them he was available. M appeared in Season 3 of the show and was a cast member for the first three episodes.

M made an adverse action claim in the Federal Magistrates Court on the basis that he had been dismissed for exercising his workplace right to take sick leave.

Much of the argument in this case centred around the validity of the certificates provided by his GP and whether his discussions with the producers of a reality tv show, and his appearance on the show, entitled the BoM to disregard the certificates.

Ultimately Federal Magistrate Wheeler held that the certificates were valid and should have been accepted as such by the employer and reinstated M to his former position.

The certificates, and the GP in discussions with the BoM, made it clear that it was the environment that was the cause of the stress and the reason for the leave being necessary. M would have been happy to return to work if the BoM had been able to provide him with a field work position. The desk-based role he was offered was the source of his stress.

Appearing on a reality television show was a very different prospect to returning to a workplace that was the source of the stress and this did not invalidate his certificates.

The BoM’s argument that this situation was analogous to that in Anderson v Crown Melbourne Ltd (2008) 60 AILR ¶100-834 was rejected. In that case the employer refused to accept the certificate on the grounds that the employee had indicated he would apply for sick leave after being denied annual leave to attend a football match. The employee had made it clear that the sick leave was aimed at getting around a refusal to allow him a day off. In that case the doctor who provided the certificate, five days before the day it applied to, had been the subject of investigations for less than ethical practices.

In this case M’s GP had legitimate concerns about his health should he return to a desk position. He did not hold similar concerns about the effect a reality television show would have on M’s mental health. The certificate should have been accepted on face value and it was not open to the BoM to dismiss M on the basis that it was false.

M was reinstated and, due to his (unsuccessful) efforts to mitigate his loss he was awarded compensation in the form of back payment of the wages lost since his termination.

Marshall v Commonwealth of Australia (represented by the Bureau of Meteorology) (2012) FMCA 1052

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