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Reality TV Geek Gives Employer Adverse Action Reality Check

Written on the 26 April 2013 by Lynne Brook, Brook Personnel - Article compliments of Aitken Legal

Reality TV Geek Gives Employer Adverse Action Reality Check

Beauty and the Geek contestant Adam Marshall was successful in his adverse action claim against his employer after his employment at the Bureau of Meteorology (BOM) was terminated.

In Marshall v Commonwealth of Australia (Represented by the Bureau of Meteorology), Mr Marshall was dismissed from his position as a weather observer for planning to appear on the Beauty & the Geek program whilst on sick leave for alleged work-induced anxiety and stress.

In deciding to terminate his employment, BOM went against the evidence of Mr Marshall’s doctor and instead relied on a medical assessment conducted by a Government Medical Officer who declared Mr Marshall medically fit to work. In reliance upon the GMO report, Mr Marshall had been directed to return to work and, when he failed to comply, his employment was terminated on the ground of ‘non-performance of duty’.

Mr Marshall argued that he was suffering from a condition that emanated from BOM relocating his employment to Brisbane which limited access to his support networks including family and his doctor and therefore prevented him from working. In the meantime, Mr Marshall obtained medical evidence from his doctor to the effect that whilst he was not fit to work at BOM, he washealthy enough to appear on the TV show.

Federal Magistrate Whelan found that Mr Marshall’s treating doctor was an honest witness, stating that she was ‘satisfied that the medical evidence was sufficient to establish that the Applicant was medically unfit to attend for work in Brisbane...”

In light of this finding, Whelan FM held that employer had taken adverse action against Mr Marshall by terminating his employment for exercising his right to take sick leave for an illness for which he was able to produce medical evidence. Whelan FM ordered reinstatement and compensation subject to further submissions.

Implications for employers

Employers need to exercise extreme caution when managing an employee on sick leave who has provided medical certificates. Taking steps to terminate an employee in such a circumstance should only be done with the assistance of legal advice.

Mark Bunch is a Partner of Aitken Legal, a law firm specialising in employment law for employers. www.aitkenlegal.com.au. The information in this column is intended as a guide only.  Liability limited by a scheme approved under professional standards legislation.


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Author: Lynne Brook, Brook Personnel - Article compliments of Aitken Legal