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High Court denies CFMEU bid to appeal sick leave adverse action case

The High Court has quashed a mining union’s hope of a further appeal against the dismissal of an Anglo Coal employee, who is also a union delegate, on the basis of adverse action.

THE Construction, Forestry, Mining and Energy Union (CFMEU) was refused special leave to appeal an earlier finding that Anglo Coal did not take adverse action when it dismissed the employee after he took sick leave. It had previously been heard that the employee had threatened to take the sick leave when his application for annual leave was denied.

The important matter in the case, as argued by the CFMEU, was that upon returning to work the employee presented a doctor’s certificate confirming he was sick, but his employer chose not to believe him. It was argued that the employer acted in a way that was in contravention of the Fair Work Act in preventing the employee to exercise his workplace rights.

Federal Court ruling:

In November 2015, a Full Court of the Federal Court upheld the finding that although the employee was eventually found to be genuinely sick, the employer’s reasons for dismissal must be considered on ‘the basis of what the employer knew or believed at the time of the dismissal’.

“The primary judge found that the decision-maker genuinely, although wrongly, believed that [the employee] had acted dishonestly. That belief was brought about by [the employee’s] conduct. The fact that it was demonstrated at the trial that [the employee] was in fact genuinely sick and entitled to take sick leave could not be determinative of the employer’s reasons for dismissing him at an earlier time,” Justice Carryl Rangiah said.

“On the facts found by the primary judge, her Honour was right to conclude that [the employee] was not dismissed because he had exercised a workplace entitlement or because he was temporarily absent from work because of illness. I respectfully agree that the respondent did not contravene s 340(1) or s 352 of the FWA.”

CFMEU fails in seeking special leave to appeal:

At the High Court seeking special leave in June, the CFMEU’s representative Herman Borenstein QC argued that there was a question about whether an employer can escape liability for adverse action on the basis of refusing to believe an employee’s ‘claim of exercise of a protected workplace right’, in this case, the right to take sick leave when genuinely sick.

Highlighting Justice Rangiah’s assertion that ‘the taking of sick leave cannot itself be described as an operative reason for the dismissal’, Mr Borenstein argued that the proper analysis should have been to ask if the leave was legitimate sick leave.

” The reason for the dismissal was that the employer did not believe it was legitimate sick leave… the vice in what has happened here is that if [the employer] had believed that the leave was legitimate sick leave, nothing would have been done,” he argued.

The High Court’s Chief Justice French said he could understand how failure to verify the correctness or otherwise of the sick leave might go to the question of whether the court accepts what the employer says about their reason for taking action against somebody.

He found, however, that he did not ‘understand how it actually goes as a matter of logic to causation’.

“In our opinion, the application does not give rise to issues of principle which would warrant the grant of special leave and special leave will be refused,” he concluded.

Finally, Chief Justice French rejected the CFMEU’s request for the court to exercise its discretion in regards to costs due to it being ‘a step in a real proceeding that would be covered by a no cost jurisdiction’.

Click here to view the High Court decision.

Implications for employers

This case has shown that despite the court generally taking the view that the employer should have more thoroughly investigated whether the employee was genuinely sick before dismissing him, there is no evidence to suggest that the employer took adverse action against the employee when dismissing him on the basis of alleged dishonesty.

Thus the case was not determined on whether the employee should or should not have been sacked, but rather whether the employer knowingly denied the employee the exercise of fundamental workplace right when taking such action.

The adverse action provisions of the Fair Work Act are complex and in AREEA’s view create an unbalanced, unnecessary liability risk for employers when exercising managerial discretion.

For advice on adverse action and what may constitute a breach, please contact an AREEA employee relations expert near you.


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