Was Mr Byrne ill on 24 and 25 April 2014?
71 A great deal of evidence was given by the parties during the course of the trial relating to the question whether Mr Byrne was ill on 24 and 25 April 2014 as he claimed. The reasons for this are clear:
the applicants claimed in this proceeding that Mr Byrne was absent on 24 and 25 April 2014 because of his illness on the relevant two days;
it is not in dispute that an employee who is unfit for duty has a workplace right to claim sick leave within the terms of the relevant industrial instrument; and
under s 352 of the FW Act the dismissal of an employee because the employee is temporarily absent from work as a result of illness or injury of a kind prescribed by the regulations is prohibited, and liable to give rise to a civil penalty.
72 The respondent strongly argued that:
Mr Byrne was not ill on 24 and 25 April 2014;
the evidence of employees of the respondent was that he did not appear ill when he was at work on 22 April 2014;
he planned to take those dates as leave irrespective of the position of the respondent to the extent that he had asked for annual leave in respect of those dates; and
he dishonestly relied on a medical certificate he persuaded Dr Farahmand to provide for him.
73 In my view there are a number of fundamental flaws in the respondent's arguments concerning the medical condition of Mr Byrne on 24 and 25 April 2014.
74 First, in my view Dr Farahmand was a credible witness, and in particular was credible in relation to his belief that Mr Byrne was unwell at the time Mr Byrne attended the surgery on 23 April 2014. I also note that the evidence of Dr Farahmand is uncontested, in the sense that there is no medical evidence before me to rebut it.
75 The respondent seeks to make much of the fact that Dr Farahmand's diagnosis was, to some extent, based on the information provided to him by Mr Byrne as to how Mr Byrne was feeling at the relevant time. I do not see this as undermining the value of Dr Farahmand's evidence. Inevitably the view of a medical practitioner must, to some extent, be guided by the symptoms described by the patient. In any event however it cannot be said that, in forming his opinion concerning Mr Byrne's state of health, Dr Farahmand relied exclusively on information supplied to him by Mr Byrne. As was clear from his evidence Dr Farahmand was aware from Mr Byrne's medical history that Mr Byrne was "very susceptible" to respiratory tract infections and that Mr Byrne had been "coping with asthma" for a number of years. Dr Farahmand examined Mr Byrne on both 23 April 2014 and 29 April 2014. On 23 April 2014 Dr Farahmand formed the view that Mr Byrne had, inter alia, a "wheezy chest" and prescribed him medication. In response to questions from Mr Neil SC, Dr Farahmand explained:
… I ask him to stay home for the rest of the week which means that the Thursday and Friday and come back after actually - after … actually week day, first of all to check his chest if he is … start his job, I issue actually a certificate to actually come back to the work, otherwise definitely I have to do some further investigation and maybe blood tests, chest x-ray and maybe a specialist referral.
(transcript 30 July 2014 p 19 ll 13-19.)
76 Dr Farahmand also rejected the proposition that his assessment of Mr Byrne as sick depended on what Mr Byrne had told him, rather than his own observations of Mr Byrne (transcript 30 July 2014 p 23 ll 8-10).
77 Further, while I note that this Court is not obliged to accept without reservation a medical certificate provided by a medical practitioner excusing conduct of this nature, I note the uncontested evidence of Dr Farahmand that he is:
… very strict, very strict about issuing the medical certificate.
(Transcript 30 July 2014 p 22 l 18.)
78 I am satisfied that on 23 April 2014 Dr Farahmand formed the view that Mr Byrne was ill, that Mr Byrne should take time off work to rest, and that it was for that reason that Dr Farahmand provided the relevant certificate.
79 The respondent has directed my attention to the decision in Anderson v Crown Melbourne Ltd [2008] FMCA 152, a case in which a Melbourne-based, self-described fanatical supporter of an Australian rules football club had obtained a medical certificate to support his absence from work on a day on which the applicant's football team was playing in Perth. The employer terminated the employee's employment in respect of that absence. In that case the Federal Magistrate was satisfied that the applicant was not ill on any relevant day, was further satisfied that the applicant had procured an accommodating medical practitioner to issue a medical certificate to excuse his absence from work on the day his team played in Perth, and declined to accept the validity of the medical certificate. However that case is somewhat different from the one before me, in which there is evidence not only of an underlying medical condition of Mr Byrne but evidence of himself, Ms Byrne, Dr Farahmand, and to a lesser extent Mr Thompson, to support Mr Byrne's claim of illness at that time.
80 Second, I found Mr Byrne a credible witness in relation to his evidence that he was developing a chest cold on 22 April 2014 and was sick on 24 and 25 April 2014. It is not in dispute that Mr Byrne is an asthmatic, and that he suffered a serious attack of asthma in April 2013. He was responsive to the questions put to him by Mr Neil SC at the hearing, and to the extent that his memory was faulty he made appropriate concessions (for example at p 81 of the transcript of 31 July 2014 in relation to the attendance of Mr Spencer at the union meeting). I accept Mr Byrne's evidence that, in light of his previous experiences with asthma:
he was concerned that he was developing a chest cold, and that he would be required to work at night for the next few days because working in a cold temperature could exacerbate his asthma;
he preferred to see his own doctor; and
it would have been a waste of time for him to see the nurse at the mine because she would have been unable to prescribe him any medication.
81 Third, I found Ms Byrne a credible witness. Her evidence concerning Mr Byrne's illness on 23 April 2014 and events of the following two days was firm and unshaken under cross-examination.
82 Fourth, I note the evidence of witnesses for the respondent - in particular Ms Baker, Mr Horn, Mr Lawn and Mr Hutchings - that Mr Byrne did not appear to be ill when they saw him on 21 and 22 April 2014. However in my view this evidence should be given less weight than the evidence of Mr Byrne, Ms Byrne and Dr Farahmand in deciding whether, as a fact, Mr Byrne was actually ill or becoming ill on 22 April 2014 and was actually ill on 24 and 25 April 2014. Simply because a person appears well enough to function in the workplace does not necessarily mean that they are "well". Mr Byrne's evidence was that he could feel a chest cold developing and he was anxious that it might develop into something more serious because of his underlying asthma. I accept this evidence. I also give greater credence to the evidence of Ms Byrne, in describing, in some detail, Mr Byrne's condition on 24 and 25 April 2014, than to the casual impressions formed by the respondent's witnesses as to Mr Byrne's state of health on 21 and 22 April 2014.
83 In my view the respondents' witnesses were not in a position to comment with any authority as to whether Mr Byrne was actually ill or developing a medical condition, on those dates. I do not discount their evidence entirely however - indeed I consider this evidence of greater relevance in determining the reasons of the respondent in terminating Mr Byrne's employment. I shall return to this issue later in the judgment.
84 On the evidence before me I am satisfied that Mr Byrne was ill on 24 and 25 April 2014.
85 For completeness in respect of this point however, I also note that I do not accept the contention of the applicants that the rule in Browne v Dunn applies so far as concerns the evidence of Dr Farahmand, Mr Byrne and Ms Byrne. That the respondent's case was that Mr Byrne had fabricated his illness and sought, after the event, to create the false impression that he was sick, was in my view obvious from the evidence of its witnesses (several of whom deposed that, so far as they knew, Mr Byrne was not sick in the days prior to 24 and 25 April 2014) and the outline of the respondent's submissions filed on 29 July 2014. The applicants knew, well in advance of the hearing, that Mr Lawn and subsequently Mr Power had formed the view that Mr Byrne had been dishonest in his claim of illness. In this light, to paraphrase the Full Court in Kraus v Menzie [2012] FCAFC 144 at [40]:
… the rule in Browne v Dunn did not require the … respondent to put his allegations in chapter and verse to the [applicant] and [it] was not deprived of procedural fairness.