Following the classic fable of crying wolf, an employee who was sacked for legitimately taking sick leave, has lost his adverse action claim in a Federal Court appeal because of his prior dishonest behaviour. 

The employee applied for two days annual leave over the Anzac Day weekend. When his employer rejected the application, the employee threatened to take sick leave instead and get a medical certificate. The employee took the days off, as threatened, and presented a sick certificate on his return to work. 

The employee was terminated because the manager making the decision genuinely believed he was being dishonest , in that he had planned to take sick leave whether he was sick or not and obtained a medical certificate to circumvent the employer’s refusal of his annual leave request. 

However, the employee did become sick on those days and thus, claimed adverse action had been taken against him for exercising a workplace right to take sick leave. 

In the original decision, the federal court found that the reason for the dismissal was because of the employee’s behaviour prior to his absence led the manager to believe that he was dishonestly claiming sick leave, rather than because he took sick leave. 

On appeal, the majority of the Federal court appeal bench upheld the original finding. The dissenting judge found that the employee was dismissed because he was absent. However, the majority agreed that the employer’s reason for dismissing the employee must be considered “on the basis of what the employer knew and believed at the time of the dismissal.” 

This case highlights the approach that is taken by the court in adverse action cases. In deciding whether there was adverse action and if it was for a prohibited reason, the court focuses on the motivation of the decision maker. 

If the court accepts the decision–maker’s bona fides, that the action was not taken for a prohibited reason, or even partly so, then there is no case to answer.

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