Want to go surfing while on sick leave? No worries...

Shane Bevan, a former world championship tour surfer, has come up trumps in a legal battle in Australia. His dismissal for going surfing while on sick leave was unfair, according to the Australian Industrial Relations Commission.

Mr Bevan had injured his back while working for a baggage handling company, and was given a medical certificate for seven days. While on leave, his grandfather died and Mr Bevan visited Sydney to be with his relatives. Mr Bevan then decided to honour his grandfather by competing in the Coolum Classic - of which he just happened to be the reigning champion. The day he surfed was a rostered day off, and by then his back had improved.

When he returned to work two days later, Mr Bevan was asked what he had been doing. He referred to his grandfather's death and the visit to Sydney. Asked if he had been surfing, he replied that he had been for a "bit of a paddle". He was then dismissed.

The Industrial Relations Commission initially found the dismissal was warranted. However, an appeal panel of three Commissioners said that the termination was harsh, unjust and unreasonable, and ordered the company to pay compensation.

At first glance this decision appears inconsistent with another Australian case, in which a court said an employee who took sick leave to attend an Australian Rules game was justifiably sacked. In that case, the court accepted that he was not sick (his medical certificate was provided by a doctor who had previously been disciplined for improperly issuing medical certificates).

In Mr Bevan's case, however, there was unquestioned medical evidence showing that he was not able to carry out lifting work while recovering from his injury. His osteopath gave evidence that while surfing would involve the muscles he had injured, any significant stress would be on different muscles. There was no evidence that the fact he could go surfing meant he could also carry out heavy lifting work.

The Commission may also have been influenced by the fact that Mr Bevan went surfing only two days before the end of his sick leave, and on a rostered day off. This meant he could not be accused of misusing his leave on the day in question, as he was not actually on sick leave that day. There was one more day of sick leave before he was due to return to work, but he arranged a shift swap for that day.

Despite all that, many will see this as a lucky reprieve for Mr Bevan. Whether his injured muscles would be subject to "significant stress" is arguably just semantics. They were still being used.

Mr Bevan could have just got in touch with his employer, told them his back had made good progress, said he wanted to participate in the competition, and told them he had arranged a shift swap for the next day. He didn't do that, and his employer found out about him surfing in the competition from somebody else. In those circumstances, it's not surprising he was sacked.

 

Greg Cain

Greg Cain is an employment lawyer at Minter Ellison Rudd Watts.

 

 

 

Photo/Alan Gibson