Anderson v Crown Melbourne Ltd - [2008] FMCA 152

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ANDERSON v CROWN MELBOURNE LTD

[2008] FMCA 152

INDUSTRIAL LAW – Unlawful termination claim – medical certificate issued by doctor to enable Applicant’s attendance at football match in Perth – Applicant’s employment with Respondent terminated as a result of his absence from work to attend football match – termination not for prohibited reason.

Workplace Relations Act 1996 (Cth), ss.240, 659, 659(2)(a)
Workplace Relations Regulations 2006 (Cth), rr.12.8, 12.8(a), 12.8(b)

Briginshaw v Briginshaw (1938) 60 CLR 336
Sperandio v Lynch [2006] FCA 1648
Sallehpour v Frontier Software Pty Ltd [2005] FCA 247

Applicant:

NATHAN ANDERSON

Respondent:

CROWN MELBOURNE LTD

File number:

MLG 1424 of 2007

Judgment of:

Burchardt FM

Hearing date:

4 February 2008

Date of last submission:

4 February 2008

Delivered at:

Melbourne

Delivered on:

3 March 2008

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Mr R.A. Millar

Solicitor for the Respondent:

Middletons

ORDERS

The application filed 16 October 2007 be dismissed.
Either one or both of the parties may apply for the making of ancillary orders within seven (7) days of the date of these orders, any such application to be addressed to the Associate to Federal Magistrate Burchardt and copied to the other party.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1424 of 2007

NATHAN ANDERSON

Applicant

And

CROWN MELBOURNE LTD

Respondent

REASONS FOR JUDGMENT

On 1 September 2007 the Applicant Nathan Anderson attended a football match between Essendon and West Coast at the Subiaco Oval in Perth.
Crown Melbourne Ltd (“Crown”), by whom Mr Anderson was at that time employed, sacked him because of his attendance at this football game and his trip to Perth to attend it.
Mr Anderson asserts that his dismissal contravened s.659 of the Workplace Relations Act 1996 (“the Act”). He says that his employment was terminated because of a temporary absence from work because of illness or injury (s.659(2)(a)), which is prohibited by that section.
Mr Anderson says that the prohibited termination arises because he had a sick leave certificate from a registered medical practitioner covering 1 September 2007. Crown, by way of contrast, says that the termination was not unlawful.
For the reasons that follow I agree with Crown that the termination was not for a prohibited reason within the meaning of s.659 of the Act.

The facts

I should stress at the outset that this case is very unusual in a number of respects. First of all, the relevant facts are to all effects and purposes not the subject of any dispute.
It is clear that Mr Anderson is a football fanatic. He says so himself and all the evidence points overwhelmingly to this conclusion.
By early August 2007 Mr Anderson was well aware that the game on 1 September 2007 might be the last game in which Kevin Sheedy would manage the Essendon Football Club. He discussed going to the game with a number of his colleagues.
In early August 2007 he approached Luke Overman and asked if Mr Overman was able to obtain any tickets for the game in Perth at Subiaco. Mr Overman replied that he could not. In any event, Mr Anderson obtained a ticket to attend the game and booked airfares to enable him to do so. It is not quite clear when that took place but it was before 24 August 2007 (transcript page 7).
On 24 August 2007, at which stage Essendon was still a mathematical chance of making the finals, Mr Anderson rang the Millennium Medical Centre in Footscray and arranged to see a Dr Prendergast on 27 August 2007.
As it turned out, when he got there Dr Prendergast was unavailable and he saw Dr Salter, whom he had previously seen two to three times.
There is a significant difference of recollection between Mr Anderson and Dr Salter as to what occurred on that occasion and I will return to that controversy later. For present purposes it is sufficient to note that on that day Dr Salter gave Mr Anderson a sickness certificate both dated and covering 1 September 2007.
Shortly before he made the appointment to go to see the doctor Mr Anderson had told a fellow employee, Shelley Thomson, he was going to attend the match at Subiaco because he was a huge fan of Kevin Sheedy and James Hird. He told her he was only going for the day.
On 26 August 2007 Mr Anderson approached Linda Clelland and told her that he wanted to drop a shift. He explained that this was because he was going to Perth for the football. He also told her that he was going to visit his doctor to get a medical certificate (He did not tell her or anyone else later, that he in fact already had the certificate). She said that she would speak to her manager, Michael Branson.
She did indeed speak with Mr Branson shortly thereafter and Mr Branson told her that he would speak to Mr Anderson on his next shift.
At about the same time, at a time described as "late August 2007" David Carter has asserted that Mr Anderson approached him and said he had tickets for the match in Subiaco on 1 September 2007.
On 29 August 2007 Mr Branson arranged to speak with Mr Anderson together with a witness. He asked Mr Anderson whether he was intending to take sick leave on the weekend and Mr Anderson confirmed that this was so. He told Mr Branson how important Kevin Sheedy was to him and said it was a particularly stressful time for him because it was Mr Sheedy's last game.
Mr Branson explained to Mr Anderson that Crown would regard very seriously indeed any misuse of sick leave, to which Mr Anderson replied words to the effect, "I'll have a doctor's certificate covering me for that day."
Mr Branson explained to Mr Anderson that this did not seem to be a legitimate use of sick leave, to attend a football match, and the consequences should he misuse his sick leave might include termination of his employment.
Mr Branson explained to Mr Anderson other options available to him such as swapping his shifts or putting his name down to take annual leave. Mr Anderson said that he did not wish to do either of those things. The conversation concluded with Mr Branson saying to Mr Anderson words to the effect, "Nathan, you'll really be in trouble if you don't come in. It is very serious and I suggest you work on that day."
On 28 August 2007, following an alleged incident involving a Ms Wong to which I pay no attention at all because Ms Wong was not called to give evidence, Mr Anderson told Scott Jeremy Ebbels that he was not going to attend work on that Saturday (1 September 2007). Mr Ebbels suggested he could put his name down on the list for annual leave, to which Mr Anderson replied, "I'm going to call in sick then."
Mr Ebbels told Mr Anderson that if he took leave when he was not sick there would be serious consequences. The precise form of words he used is in dispute but is not of any moment.
Mr Anderson did indeed go to Perth, saw the game, which was not only Mr Sheedy's last game in charge but also the last game of James Hird, a talismanic Essendon player.
Mr Anderson returned on the red eye flight and attended for work on 2 September 2007.
When he attended work Mr Anderson was asked to come to a meeting attended by Margaret Preston, senior operations manager, and Rodney Mitchell, a union representative, and also Mr Overman. It is clear that Ms Preston taxed the Applicant concerning misuse of sick leave and that Mr Anderson was quite open that he had gone to Perth for the game on 1 September 2007 despite the fact that he was rostered for work. It seems clear, indeed it is not at all contested, that the substantive response by Mr Anderson was to the effect that it was not open to Crown to question his medical certificate. He also said he was highly passionate about Essendon, especially Kevin Sheedy and James Hird, and that it was not the place of Crown to judge how he was feeling about their retirement.
The upshot of the meeting was that Ms Preston suspended Mr Anderson without pay in accordance with the relevant enterprise agreement, and said that she would be speaking with human resources as soon as practicable and contact him thereafter.
In fact Ms Preston spoke to Darren Hildred from human resources on 3 September 2007 but left it to Mr Hildred to contact Mr Anderson and make arrangements for a further meeting.
A further meeting was held on 5 September 2007. Mr Hildred and Ms Preston were there on behalf of Crown and, having been given the opportunity to have a union representative present, Rodney Mitchell also attended.
The procedure adopted was eminently fair. Mr Anderson was given an opportunity to talk to the union representative Mr Mitchell before the meeting commenced and Mr Mitchell was present at all times.
Mr Hildred gave Mr Anderson an opportunity to put his side of the story about his absence on 1 September 2007. Not surprisingly, Mr Anderson responded with the explanation of Mr Sheedy being a role model and how important it was for him to see the last game he was in charge. Mr Anderson said that he was emotionally unfit to work.
In response to a question as to why he had not applied for annual leave Mr Anderson said he did not bother because there was no point. He said he had unsuccessfully tried to swap his shift (which of course had indeed been the case).
He was also asked about whether he had applied for a temporary working arrangement which might have given him time off for a special purpose but did not respond. He confirmed that he had enjoyed the match and gone to the casino in Perth.
Once again not surprisingly, Mr Anderson repeated his point that Crown had no right to question his doctor. He said the fact that his doctor had certified his absence should be enough.
It seems to be the case that Mr Hildred raised some past performance problems alleged to have occurred with Mr Anderson, but those are not now of any relevance.
The upshot of the meeting was that Mr Hildred dismissed Mr Anderson from employment with Crown. He was paid one week in lieu of notice.
The above recitation of facts is, as I have said, not the subject of dispute. When Mr Anderson cross-examined the various witnesses called by Crown, while he took issue with one or two minor matters of phraseology and emphasis, there was no substantive challenge to the facts asserted above. In any event, the witnesses called by Crown were not in any instance moved from their evidence in their affidavits and their demeanour and the manner in which they gave evidence were all impressive. I believe them.
The only exception to the above generalisation is this, that Mr Ebbels was prepared to concede that some phrases used in his affidavit might have been slightly differently expressed. That is not a matter of any moment.
I should say that the general tenor of the evidence given by Crown's witnesses as to what occurred was in substance no different in any event from that of Mr Anderson.
It should be noted that I paid no attention to the affidavits of Ms Wong and Mr Parlour because they were not called to give evidence, and further I have paid no attention whatsoever to the reference to the matters concerning Ms Wong contained in Mr Ebbels's affidavit.

The visit to Dr Salter

Very unusually, the only significant conflict of evidence in this proceeding is what happened when Mr Anderson went to see Dr Salter.
Mr Anderson's aspersion was:
“I think I said verbatim, I said, “I want to see Kevin Sheedy's last game as coach of the Essendon Football Club." I believe that his response was it was James Hird's last game as well. Then I said that, "Yes, but I am not an Essendon supporter." Then he offered me a medical certificate." (Transcript page 11.)
Mr Anderson went on to say:
“It wasn't very long, but we talked a little bit after he had - or while he was writing the certificate and a bit after that as well. But it wasn't very long.
Yes. What sorts of things did you talk about while he was writing the certificate? Was it just chit-chat or …? ---I think I’ve said of sort of major parts about what happened in the consultation. After that - there was no mention of it being in Perth. I think I just assumed that he knew about the game.”
Mr Anderson went on to say that Dr Salter offered the certificate and that he had not asked for it. In response to this question:
“Yes. Did he inquire of you - and again, you don't have to answer this if you don't wish - but did he inquire of you about any symptoms that you were suffering or details of the medical condition? ---No.
Did you actually say to him that you were suffering from a medical condition? ---No.
Did he actually say to you that you have a particular condition, or did he diagnose any illness? ---No.
Did he refer you to more tests with a specialist or anything like that?---Hold on, when you say diagnosed, he didn't tell me about any diagnosis … and no, he didn't refer me to a specialist, psychologist or anyone.” (Transcript page 12.)
Dr Salter's version was not based on any notes because he did not take any notes of the consultation. He said he remembered the consultation quite well.
Dr Salter's version was that the conversation lasted at least half an hour and that the certificate was issued at the very end of the consultation, that being about twenty minutes, half an hour after the consultation started. Dr Salter said, "It was a significant length of consultation." (Transcript page 39.)
According to Dr Salter the consultation started with Mr Anderson stating that he wished to attend the particular football game and that it was important to him and that thereafter Dr Salter had discussed with him what measures he had taken to secure time off, what his general state of health was. He said he probed about Mr Anderson's mental health, whether or not he suffered depression and whether there were issues regarding that. He said that, "It was a bit of a chat consultation."
The above is a digest taken from Dr Salter's answers on the transcript from page 38 to page 40.
I propose to deal with this conflict directly. It is in many ways unfortunate that it is necessary to do so.
Mr Anderson was in my view an honest witness. He presented as being both young and to an extent somewhat ingenuous.
Such challenges as he made to the evidence put by Crown's witnesses were put in a reasonable way and it is to his credit that he in effect took very little argument with their version of events.
It should also be noted that in the events that led to his termination of employment, however unwise Mr Anderson's conduct may have been, it was always fully frank and above board. He said what he was going to do and he did it.
I should say that Dr Salter's demeanour was not in any way unimpressive. Nonetheless I prefer quite clearly the evidence of Mr Anderson. Regrettably, the account of events given by Mr Anderson is wholly consistent with two prior instances of difficulties which inter alia included difficulties with accuracy in medical certificates which have bedevilled Dr Salter's life. The exhibits A1 and A2 are decisions of the Medical Practitioners Board of Victoria given in 2002 and 2004.
I have approached these reports with some care as they are plainly damaging to Dr Salter and I have only relied upon those parts of each decision that show first that Dr Salter had, albeit in extenuating circumstances, issued prescriptions that were unlawful to benefit his then partner, a clear breach of medical obligations (2002 decision), and more particularly had issued false sickness certificates in 2003 (the 2004 decision).
I should stress that it would appear in both the 2002 and 2004 decisions the Tribunal was influenced by the fact that Dr Salter was a man of particularly compassionate nature who had allowed that compassion in a sense to overbear his professional judgment.
I further note that Dr Salter himself conceded that to issue, as he did, a certificate on 27 August 2007 dated 1 September 2007 was itself inappropriate and improper, and that the certificate was further deficient in that according to its terms it clearly suggested that the certificate was issued on 1 September 2007 when of course it was issued some days earlier.
I have approached this important factual issue bearing in mind Briginshaw principles. The substance of the factual findings I make clearly show that Dr Salter has issued a medical certificate in circumstances that are unsatisfactory. Nonetheless, as I say, I believe Mr Anderson's evidence and the other matters to which I refer only go to support the impression I received from the way in which that evidence was given.
Having accepted Mr Anderson's version of the events, it is clear that he went to a registered medical practitioner, told that practitioner that he wanted to go and see the game in Subiaco on 1 September 2007 and made it plain that this was something very important to him.
Dr Salter immediately and without it even being requested gave him a sick leave certificate for one day to enable him to do so.

Was Mr Anderson ill?

At this point it is therefore necessary to consider whether in fact Mr Anderson's state of health was such on 1 September 2007 that he was absent by reason of a temporary illness or injury.
Section 659(2)(a) of the Act prohibits termination of employment for a reason which includes “temporary absence from work because of illness or injury within the meaning of the Regulations”.
Regulation 12.8 of the Workplace Relations Regulations 2006 (“Regulations”) states:
12.8(1) For paragraph 659(2)(a) of the Act, an employee’s absence from work because of illness or injury is a temporary absence if:
(a)the employee provides a medical certificate for the illness or injury within:
(i)24 hours after the commencement of the absence or;
(ii)such longer period as is reasonable in the circumstances;
Medical Certificate is by reg.12.8 given the meaning of s.240 of the Act which is:
a certificate signed by a registered health practitioner.
It is clear on the evidence that the certificate given by Dr Salter was a certificate given by a registered medical health practitioner.
Mr Anderson gave the certificate to his employer on 2 September 2007.
This means that Mr Anderson’s absence was a temporary absence within the terms of reg.12.8(1)(a).
That still leaves of course the question of whether the temporary absence was “because of illness or injury”. Illness and injury are not defined in the Act and should be given their ordinary meaning.
Mr Anderson's evidence in affidavit about his illness is as follows, contained in his affidavit sworn on 1 November 2007:
“I went to one (1) doctor and described my condition to him. I made specific mention that going to the Essendon vs. West Coast game was important to me because it was Kevin Sheedy's last game as coach.”
That was the evidence of course he gave orally as well.
When asked (transcript page 8):
“What symptoms of illness did you have that led you to make the appointment with Dr Salter? ---Emotional distress.
Okay. The sort of stress that any sports fan would have before a big game. Would you agree with that? ---No, I would say it's quite a lot more than that. I've been involved watching sport, playing sport for a long time but I saw the game and I think he saw the game that I wanted to see as a lot different to just an ordinary sort of exciting sort of game. There was much more of an emotional element to it than just an average sort of game I think.”
Mr Anderson said (transcript page 9):
“Partially. I don't think - if Dr Salter had said, you know, "I don't see your condition as being one that warrants a medical certificate," there wouldn't have really been any sort of stress in terms of going to the game. I mean, I might have tried other avenues but I'd pretty much exhausted all avenues of trying to get a day off. I doubt if I would have got it off any other way. I would have cancelled my ticket, flights, $40 cancellation fee, sold off my game tickets to someone, probably for more than I paid for them.”

When asked later on the same page of transcript:
“Now, we need to talk about that legitimate concern for your health. I asked you before what symptoms of illness you had? ---Just emotional. I'm not a very - I'm a pretty hard sort of person, you know. I'd never taken sick leave in 11 months of full-time work. I can pretty much take anything. But, you know, I just wanted to see whether - I felt emotionally - particularly when I found out Richmond had beaten Essendon. I felt quite emotionally sort of down, more so than other games when my team would maybe lose or something like that. It was a lot bigger than that, it was the end of an era, end of the career of a football great … I was still down when I saw Dr Salter and I'm pretty sure he would have perceived that when I consulted him.”
I have already referred to the transcript passages at page 12 in which Mr Anderson asserted that Dr Salter did not inquire about any symptoms he was suffering or details of the medical condition and indeed that he had not asserted himself that there was a medical condition.
Mr Anderson did say at pages 13-14 that he had been emotional once Crown's officers, including Mr Branson, had raised issues with him on the Wednesday or Thursday of the week which led up to 1 September 2007, but it seems wholly clear that such extra emotion as Mr Anderson may have felt did not require him to go and see his medical practitioner. He did not do so.
It is also clear that Mr Anderson was in good physical health on 1 September 2007. His activities in attending the game, the Burswood Casino and flying back to Melbourne to go to work the next day bear this out, and in any event he admitted this directly (transcript page 16).
At the game in Perth Mr Anderson's emotions are described by him as:
“It was appropriate to describe the day as a very, very emotional day for someone who's mad about football like me, and I drank not to increase the excitement or whatever but to - most of my drinks were before the final quarter started. It was very, very depressing to see how the match was panning out and I just wanted to get my mind off what was going on in front of me. It sounds bizarre, doesn't it (transcript page 17).”
On the same page of transcript Mr Anderson said the following, which really explains his behaviour quite succinctly:
“It's too hard to sort of speculate as to what would have happened if Dr Salter hadn't written the medical certificate and I - because the thing is, when a doctor writes you a medical certificate you put your trust in them. You put your faith in them. You think, "Okay, he or she has written a certificate” so that's it. You don't really think about it. If they say, "No, we're not going to do anything" - I didn't even ask him for a certificate, by the way, again. If he had not written a certificate I would have considered myself to be in a different state of mental health than what I was, than what he sort of saw it to be. So yes, it's very difficult to say how I would have felt on the day if he didn't write the medical certificate. I think it's fair to say that.”
It should be noted that I have not accepted Dr Salter's evidence where it conflicts with Mr Anderson's. Nonetheless, bearing in mind that Mr Anderson did say that there was some discussion between him and Dr Salter I note the following points about what Dr Salter said about the state of Mr Anderson's health.
a)Mr Anderson was a fanatic supporter of his club and that particular day was of great significance to him personally such that given his personality type were he to work on that day he would be cognitively impaired (transcript page 39).
b)The personality type referred to in (a) was “a particularly fanatical supporter of a football club” (transcript page 51).
c)Mr Anderson would be preoccupied and would not be able to perform his duties to the best of his ability (transcript page 39).
d)The previous point was a medical issue which was sufficient to warrant the issuing of the certificate (transcript page 39).
e)Because Mr Anderson was a very fanatical follower and the day was so special for him should he have worked that day it might have impaired him cognitively so that he might not be able to work to the best of his abilities (transcript page 43).
f)There was no depression or history of depression in Mr Anderson (transcript page 51).
g)If Mr Anderson did not go it might be an ongoing issue in his life which might be detrimental to his health in the future (transcript page 51).
As the learned editors of Cross on Evidence state at paragraph 29.07.5:
“Expert evidence, when admitted, has probative value.
Indeed, it has been said that if medical evidence is all one way and in favour of an accused, and there is nothing in the facts and surrounding circumstances which could lead to a contrary conclusion, a verdict against the medical evidence cannot be sustained. (Cross at 29.07.05)”
Nonetheless, while it is plainly obviously wrong for a non-medically qualified person such as a judge to cavil at an opinion given by a qualified medical practitioner in an area of that practitioner's expertise, I do not think it can be the case that either a Court, or indeed even an employer, is necessarily bound to treat a medical certificate as binding on them. I have been referred to a number of authorities by counsel for the Respondent, but none of them exactly mirror the circumstances that arose here.
Proceeding from first principles I think that a medical certificate from a qualified medical practitioner within the practitioner's area of expertise is prima facie to be accepted.
It would only be in the most unusual and exceptional circumstances that an employer and/or by inference a Court would not accept the validity of such a certificate.
This case, however, is an exceptional case. On the uncontested evidence as to what actually happened I think it is open to me to apply my own judgment and common sense.
The fact is that Mr Anderson went to the doctor and said he wanted to go to Perth to watch a football match and Dr Salter forthwith gave him a certificate to cover that absence. The reference by Dr Salter to it being James Hird's last game also suggests that Dr Salter formed an instant sympathy with the end that Mr Anderson was seeking to achieve.
Mr Anderson was not the subject of meaningful medical diagnosis by Dr Salter, who did not even keep notes of the consultation. The only reason that Dr Salter gave Mr Anderson a certificate was because he had formed the view that Mr Anderson was a football fanatic who would be distressed if he did not go to Perth. That distress might continue into the future.
The most that Dr Salter was able to say about whether or not Mr Anderson would have been able to work on 1 September 2007 was that his judgment might have been impaired and he might not have performed to the best of his ability.
It should be noted that although the circumstances of the issuing of the certificate for Mr Anderson by Dr Salter were manifestly unsatisfactory, the matter I have to decide is not whether it was proper of Dr Salter to give the certificate but whether or not in truth the absence of Mr Anderson, which was certainly temporary, was caused by illness or injury.
The fact is that at all times Mr Anderson was in excellent physical health.
He is also clear he was not suffering from depression or any other diagnosable (let alone diagnosed) medical condition.
In my opinion the evidence shows, notwithstanding the issue of the certificate by Dr Salter and notwithstanding the opinions Dr Salter expressed in his evidence, that Mr Anderson was not ill on 1 September 2007.
Furthermore, I am satisfied that the condition in which Mr Anderson presented to Dr Salter on 27 August 2007 was not such that it is possible to form the view that had he attended work Mr Anderson would have been unwell on 1 September 2007.
So much is in fact entirely clear from Mr Anderson's own evidence. If he had not been given the certificate he would not have gone and, by inference, would have worked his shift. I also am influenced in arriving at this resolution of this matter by the uncontroverted fact that Dr Salter has, unfortunately, in the past on two occasions conducted himself in a fashion that shows a departure from proper conduct as a doctor, in one instance in the matter of giving a prescription and in the other in the matter of giving sickness certificates in circumstances that were inappropriate.

Conclusions

In my view, it is clear that Mr Anderson was not ill either on 27 August 2007 or at any time up to and including 1 September 2007.
It therefore follows that his absence from work on 1 September 2007 was not caused by injury or illness.
That is sufficient to dispose of this matter but I propose to deal with the second limb in any event.
Even if Mr Anderson had been ill, it is not in any way clear to me that he would not have been able to perform his work had he attended. He plainly contemplated attending himself as an alternative hypothesis.
Furthermore, taking the evidence of Dr Salter at its highest, the worst one could say is that Mr Anderson might have difficulty in concentrating and might have made mistakes. That is not the same thing as saying he was unable because of illness to attend work.
Mr Anderson was on any view in perfect physical health on the relevant day, and while he was obviously saddened by the circumstances of Mr Sheedy's and Mr Hird's departure from the scene, and while I am quite prepared to accept that he felt this more keenly than perhaps other football supporters would do, it does not in my view show anything that would have prevented him from working.
Crown terminated Mr Anderson’s employment for what it regarded as misuse of sick leave entitlements by Mr Anderson.
Here was an employer confronted with an employee who made it quite plain he did not propose to attend for work on a given date for which he was otherwise required and foreshadowed that he would provide a sickness certificate to cover his absence.
The sickness certificate he ultimately provided on 2 September 2007 was one that the employer was entitled to look at askance bearing in mind that Crown knew that Mr Anderson had in fact been in Western Australia throughout the whole of 1 September 2007 attending a football game and the casino.
Crown did not dismiss Mr Anderson because he was absent from work because of a temporary illness. Crown dismissed Mr Anderson because he had misconducted himself as they saw it. In Sperandio v Lynch [2006] FCA 1648 at [91] in respect of a relevantly identical provision of the Workplace Relations Act 1996 before its amendment, Jessup J said:
“For an employer to act in breach of the provision, there must be an awareness that the absence was because of illness or injury, and the absence must be the reason for the termination.”
Here Crown was not aware that the absence was because of illness or injury. To the contrary, Crown was of the clear view that Mr Anderson had simply absented himself wilfully and in circumstances amounting to misconduct.
Finally, I should say that, with respect, I adopt what was said by Marshall J in Sallehpour v Frontier Software Pty Ltd [2005] FCA 247 at [38], where his Honour pointed out that proceedings of this sort do not call upon the Court to determine whether the dismissal was itself fair or unfair. The issue is whether or not the reasons for dismissal included a prohibited reason in contravention of s.659 of the Act.
Having said that, I think it is appropriate in the circumstances to observe that the procedure whereby the dismissal was effected was in my view entirely fair, involving as it did union representation, an opportunity for Mr Anderson to discuss the matter with his union representative, and an opportunity for him to put anything he wished to put.
This termination of employment is in many ways very unfortunate. Had not Dr Salter so inappropriately given a sickness certificate to somebody who plainly did not merit one, it seems entirely clear that Mr Anderson would not have gone to Perth and not have lost his job. In one sense counsel for the Respondent is right to say that he may well have complaint to make of Dr Salter.
Nonetheless, on any view Mr Anderson basically told all concerned at work, "I am going to go to this game come what may and I will get a certificate to justify my position."
This is exactly what he did and Mr Anderson both during the processes that led his termination of employment and before this Court has adopted the very dogmatic position that his sickness certificate was not to be challenged. He would doubtless say of me what he said of his employer, "You are not a doctor."
That, however, in my view was an error of judgment both in his relations with his former employer and in the position he put to the Court.
I have formed a clear view that I should not accept the validity of the certificate issued by Dr Salter. I find that Mr Anderson was not ill on 1 September 2007.
Furthermore, even if contrary to that finding Mr Anderson was ill, it was not the reason for his non-attendance at work. His non-attendance for work was because of his determination to be in Perth. On the evidence he plainly could have attended work.
Furthermore, the termination was not because of any ill health on the part of Mr Anderson. It was because of the perception that Crown had of misconduct on the part of Mr Anderson.
For these reasons the application must be dismissed.

I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate: Brooke Evans

Date: 3 March 2008