Most employers realise that there will be instances where people will be genuinely unfit for work. However, prolonged periods of absenteeism may generate scepticism surrounding the legitimacy of an employee’s unfitness for work and the potential abuse of their personal leave entitlements. This suspicion may be especially heightened when an employee does not disclose the precise nature of the employee’s reason(s) for taking personal leave.
Whether an employer can act upon their suspicions of an employee’s reasons for taking leave, and the potential consequences of doing so, was the subject of a recent general protections application in Wildman v IMCD Australia Ltd.1
In August 2013, Mr Wildman was employed by IMCD as the Commercial Manager of Capitol Ingredients. Throughout the second half of 2017, Mr Wildman’s mental health deteriorated due to the passing of his father, the stress and pressure he felt at work as well as the declining health condition of a close friend. Mr Wildman was subsequently advised by his treating doctor, Dr Pinnock, to take a break from work from 19 January 2018 to 18 May 2018. Mr Wildman provided four medical certificates to IMCD however, none of these certificates specified the nature of Mr Wildman’s illness. Importantly, just before Mr Wildman went on paid personal leave, he had been asked to relocate to a different working location. Given this, and the brevity of his medical certificates, IMCD formed the view that Mr Wildman was abusing his personal leave entitlements and that he was unhappy about having to relocate to a different working location.
In mid-April 2018, IMCD attempted to understand the nature of Mr Wildman’s illness by directing him to undertake a medical examination and to attend a workplace meeting. IMCD also attempted to contact Dr Pinnock. Mr Wildman did not follow IMCD’s directions nor did he consent to IMCD speaking to Dr Pinnock. IMCD summarily dismissed Mr Wildman without notice on the basis that he had failed to comply with a lawful and reasonable direction.
Mr Wildman and IMCD’s Contentions
Mr Wildman brought a general protections application against IMCD claiming that it had taken unlawful adverse action against him by threatening to dismiss him and then actually dismissing him because he had exercised a workplace right to take personal leave. He also contended that he was unlawfully dismissed due to him being temporarily absent from work and that IMCD had unlawfully coerced him not to exercise his workplace right to take paid personal leave. Finally, Mr Wildman alleged that IMCD had not provided him with the minimum notice of termination.
In response, IMCD claimed that since Mr Wildman’s medical certificates did not disclose his illness, a reasonable employer would not be satisfied that Mr Wildman was unfit for work. IMCD also argued that their directions were not intended to negate Mr Wildman’s choice to take personal leave but rather, were necessary for IMCD to understand how it could assist in his return and for the operational needs of IMCD’s business. On this basis, IMCD claimed that since Mr Wildman failed to comply with their directions, his conduct amounted to ‘clear serious misconduct’ which therefore permitted IMCD to summarily dismiss him without notice.
Question One: Were Mr Wildman’s medical certificates sufficient to justify the taking of personal leave?
In all four medical certificates given to IMCD, Dr Pinnock merely stated that Mr Wildman was undergoing medical treatment and was unfit for work. There was no mention of Mr Wildman’s mental health complications. Despite this, Judge Baird found that since IMCD knew that Mr Wildman suffered from rheumatoid arthritis in the past and appreciated that it would be difficult for him in moving work locations, a reasonable employer in the position of IMCD would be satisfied that the leave taken was because Mr Wildman was unfit for work. Notably, Judge Baird rejected IMCD’s contention that Mr Wildman abused his personal leave entitlements.
Question Two: Were the directions given by IMCD lawful and reasonable?
Judge Baird noted that the evidence did not demonstrate that IMCD had a genuine need for the medical examinations or for Mr Wildman to attend the workplace meetings. Judge Baird recognised that although there is a duty to cooperate, it does not require an employee to submit to do whatever their employer asks. Whether a direction is reasonable will ultimately turn on the circumstances of each matter and the particular type of employment. For these reasons, Judge Baird concluded that IMCD’s directions were not lawful or reasonable.
Question Three: Did IMCD’s directions to Mr Wildman amount to coercion?
Judge Baird noted that the communications between IMCD and Mr Wildman expressed IMCD’s strong belief that Mr Wildman was not sick and was abusing his personal leave entitlements. Judge Baird recognised that these communications sought to interrogate both Mr Wildman and Dr Pinnock so that IMCD would be otherwise satisfied. Ultimately, Judge Baird noted that the communications and directions given by IMCD evinced a high degree of compulsion which amounted to coercion.
Question Four: Did IMCD take unlawful adverse action against Mr Wildman?
As it was found that IMCD’s directions were not lawful or reasonable, Judge Baird concluded that IMCD had taken adverse action against Mr Wildman by threatening to, and on 4 May 2018, dismissing him because he had exercised his workplace right to take personal leave.
Furthermore, it was found that IMCD had contravened its obligation to provide Mr Wildman 5 weeks’ written notice of termination or payment in lieu of notice.
Employers should be cautious when attempting to criticise or comment on the validity of a medical certificate provided by an employee to justify the taking of personal leave. Employers should generally assume that a medical certificate given by an employee is valid unless there is clear evidence to the contrary, such as where it can be shown that the medical certificate has been fraudulently prepared by the employee.
The decision also reminds employers of the need to ensure that directions given to employees are genuinely necessary. If they are not, this can render the directions unreasonable and thereby unenforceable.
Addisons’ employment law team can help employers better understand their rights and obligations with respect to personal leave and other statutory leave entitlements.
1 Wildman v IMCD Australia Ltd  FCCA 1161.