Medical certificates – when can an employer question an employee’s evidence?

When an employee provides a medical certificate stating the employee is not fit to work, the employer must generally grant the employee personal leave (sick leave) for the relevant period. Section 96 of the Fair Work Act 2009 provides an employee with 10 days of paid personal/carer’s leave for each year of service, accumulating progressively. To take personal leave, the employee must be unfit for work because of a personal illness, or a personal injury effecting them (s.97). A certificate from a medical professional stating the employee is unfit for work must prima facie be taken as evidence, satisfying the requirement under s.97. However, where the employer has a real suspicion the medical certificate is fabricated or that the employee is fit to work, there are some situations in which the employer may be able to challenge the employee’s evidence. I will discuss three situations in this blog post:

1. The employer suspects the medical certificate is fraudulent;
2. The employer suspects the medical certificate has been altered by the employee; and
3. The employer believes that despite a valid medical certificate being produced, the employee was fit to work in the period.

1. Employer suspects medical certificate is fraudulent

In examining a medical certificate, an employer should look to see whether the medical certificate contains basic information such as the information listed in the AMA Guidelines for Medical Practitioners on Certificates Certifying Illness 2011 (revised 2016):

1. Name and address of the doctor issuing the certificate;
2. Name of the patient;
3. Date on which the examination took place;
4. Date on which the certificate was issued; and
5. Date(s) on which the patient is or was unfit for attendance (5.1).

General practitioners are not bound to follow these guidelines and an absence of one of these items does not mean the medical certificate was not validly issued. While the AMA Guidelines state the certificate should be legible and written so that a non-medical person is able to read and understand it and be written on stationery designed specifically for this purpose (5.3), my experience as a legal practitioner is that this guideline is often not followed by doctors. While a medical practice will not provide any information about a patient or a patient’s condition (due to privacy obligations), they will ordinarily be willing to simply confirm whether or not a doctor works at the practice or whether or not a doctor issued the certificate. However, before making such an inquiry, the employer should have real reason to doubt the validity of the medical certificate.

The absence of a doctor’s name or doctor provider number could be sufficient reason to make inquiries. In Tokoda v Westpac Banking Corporation [2012] FWA 1262 Ms Tokoda presented her employer with a medical certificate that did not have the doctor’s provider number on it. The employer then made inquiries with the medical practice and was told that the doctor had not provided the certificate and that the employee had not been present at the medical practice since 2009. After an investigation the employee’s employment was terminated, as Westpac had lost the trust in the employee necessary for her continued employment in the banking industry. The FWC dismissed the unfair dismissal application, taking into account the fact the employee worked in a bank, a position requiring the highest standards of honesty and integrity. The employee was not just dishonest in falsifying the certificate but continued to be dishonest afterwards during the investigation. Note this case is specific to the facts and even where a medical certificate is found to be fraudulent, it should not be seen as a “slam dunk” reason for summary dismissal.

1. Employer suspects medical certificate has been altered by the employee

In Hammond v Australian Red Cross Blood Services – Sydney [2011] FWA 1346, a nurse Ms Hammond brought an unfair dismissal claim against the Australian Red Cross after her employment was terminated following her production of an altered medical certificate.

Ms Hammond sustained a back injury at work and was on reduced duties and restricted hours in the period before producing the altered certificate. She obtained a WorkCover Medical Certificate on 6 September 2010 which cited only one restriction “avoid mobile units”. The medical certificate did not cite the list of restrictions that had been on previous medical certificates. Ms Hammond contacted the medical centre, spoke to the receptionist and asked whether the doctor had wanted all the restrictions included. The receptionist advised her she could put further restrictions on the certificate. Ms Hammond made those changes to the certificate believing the doctor had given her permission to do so. The Australian Red Cross obtained a copy of the medical certificate directly from the medical practice and called Ms Hammond into a meeting without a support person or union official to explain the discrepancies. She explained how she had altered the certificate. The Australian Red Cross summarily dismissed her (albeit with notice).

The FWC found Ms Hammond had been unfairly dismissed as her conduct did not constitute a wilful or deliberate attempt to commit an act striking at the heart of the employment relationship. The reasons the employer provided for dismissal being fraud and corruption and breach of a code of conduct were not sound, defensible or well founded. Ms Hammond was reinstated.

Deputy President Sams found the conduct warranted a warning only. Employers should take note of the following paragraph:

That said, it troubles me to say that I find the conduct of the respondent towards the applicant, from July to September 2010, to be appalling and unacceptable. The respondent’s actions ill behove the standards of behaviour I would expect from any employer; let alone one of the size, functionality and reputation of the Red Cross Blood Service. In my view, the respondent embarked on a deliberate and reprehensible campaign to threaten the applicant’s ongoing employment, based primarily on the grounds of her unfitness to fulfil her pre-injury duties. When it found what it thought to be the perfect grounds for the applicant’s dismissal - her alteration of the 6 September 2010 medical certificate - it pounced on her with speed and gusto, denied her procedural fairness and accused her, without mincing words, of the most serious of conduct, being corruption and fraud. I believe the applicant’s consequent dismissal to be manifestly unjust. On any objective analysis, the applicant’s alteration of a medical certificate was nowhere near what any reasonable person might consider to be corrupt, fraudulent or illegal conduct. This is so, not only because of the nature of the conduct itself, but because of the circumstances surrounding the conduct. That is not to say that the applicant’s alteration of the certificate can be condoned or that she is entirely blameless for what happened. Indeed, she readily admits that she did the wrong thing. But given the following circumstances, the applicant’s conduct warranted no more than a warning, and most certainly not summary dismissal for fraud and corruption.

Employers should be very wary when alleging a medical certificate has been altered. Even where there is clear evidence showing the employee has altered the certificate, it will likely only warrant a warning unless it is done in such a way that is so significant such that it destroys the trust required in the employment relationship.

1. Employer believes that despite a valid medical certificate, the employee was fit to work in the period

In Anderson v Crown Melbourne Ltd [2008] FMCA 152, the Federal Magistrate’s Court upheld an employer’s decision to dismiss an employee after the employee had attended a football game while on sick leave.

Mr Anderson provided his employer Crown Melbourne with a medical certificate from a registered medical practitioner covering 1 September 2007. On 1 September 2007 Mr Anderson had attended the Essendon against West Coast game in Perth. He had obtained the medical certificate from Dr Salter on 27 August 2007 which covered the period of 1 September 2007. He had discussed going to the game with a number of colleagues including his supervisor and had spoken of his intention to obtain a medical certificate for this period (at this time he had already obtained the medical certificate covering 1 September 2007). On 29 August 2007 his supervisor Mr Branson met with him and said that misuse of sick leave will be treated very seriously. Mr Anderson said he would have a medical certificate. Mr Branson responded that he did not see that attending a football match was a legitimate use of sick leave. On 2 September 2007 when Mr Anderson attended work he was called into a meeting where he asserted it was not up to the Crown to question his medical certificate.

Federal Magistrate Burchardt preferred the evidence of Mr Anderson to Dr Salter and found that Mr Anderson had told Dr Salter he wanted to see the game at Subiaco on 1 September 2007 and made it plain this was very important to him. Dr Salter without it even being requested gave him a sick leave certificate for one day to enable him to do so and gave evidence that he formed the view Mr Anderson would be distressed as a football fanatic if he was unable to attend and may find it difficult concentrating at work. Dr Salter conceded that issuing a certificate as he did on 27 August 2007 dated 1 September 2007 was itself inappropriate and improper. Dr Salter had previously had two incidents of difficulties with accuracy in issuing medical certificates. On the two occasions the Medical Practitioners Board of Victoria found Dr Salter was a man of a particularly compassionate nature and had allowed that compassion to overbear his professional judgment.

The Federal Magistrate then considered whether Mr Burchardt had indeed been ill on 1 September 2007. He decided that the evidence showed Mr Anderson was at all time in excellent physical health, was not suffering from depression or other diagnosable medical condition and that despite the medical certificate Mr Anderson was not ill on 1 September 2007 and that the subsequent termination of his employment was not unfair.

While the case was decided under the old Workplace Relations Act 1996 on very unique facts, employees and employers should note the following points:

1. A medical certificate from a qualified medical practitioner within the practitioner's area of expertise is prima facie to be accepted ([80]).
2. 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 ([81]).
3. A court or an employer is not necessarily bound to treat a medical certificate as binding on them where an unusual or exceptional circumstance exists ([79]).

It is a high risk approach to commence investigations merely because the employee was seen “out and about” when they were on sick leave, as the employer will generally not be aware of the exact reason why the employee is unfit for work on the day. If an employee is unfit to work because of a mental illness, it may be beneficial to their treatment to attend social gatherings with family members. A doctor ordinarily will not specify on a medical certificate the condition the employee is suffering from.

Risks

There are risks associated with taking action such as issuing a warning or dismissing an employee including unfair dismissal and adverse action claims. To reduce the risk of a successful adverse action claims, employers should be careful to focus on the medical certificate as evidence and not the employee’s time taken off work. If discrepancies are found, the emphasis should be on the dishonesty and breach of trust arising from the fraudulent/altered medical certificate.

Personal leave is a workplace right under s. 341 of the Fair Work Act and the failure to provide personal leave to which an employee is entitled may constitute adverse action under s. 432(1). However, an employee is only entitled to take personal leave where the employee is not fit for work because of a personal illness or personal injury affecting the employee. An employer must ensure they are able to establish any action taken against an employee was not taken because an employee was exercising their right to personal leave. The onus will be on the employer, as it will be presumed the action was taken because the employee was exercising their right to personal leave unless the employer proves otherwise (s. 361).

Employers should act cautiously when approaching medical certificates and only begin investigations when there is a valid reason to question the medical certificate. A valid reasons to make further inquiries might include where the date on the medical certificate has been obviously erased and altered or where the medical certificate has been issued by a doctor who retired years ago.

Summary

Remember the basics. Medical certificates should prima facie be taken at face value. Before making further inquiries the employer should have a real reason to do so. An employer should only challenge the evidence in a medical certificate issued by a medical professional in “unusual or exceptional circumstances” (Anderson v Crown Melbourne).  

What happened to fallen wellness entrepreneur Belle Gibson? Director of Consumer Affairs v Gibson [2017] FCA 240

Belle Gibson is the fallen wellness entrepreneur who had an app, website, and book. She claimed that she had been diagnosed with brain cancer in 2009, been given four months to live and had taken and then rejected conventional cancer treatments in favour of embarking on a quest to heal herself naturally. She also made representations about proceeds she would pass on to charities. The media began to make and report allegations against Ms Gibson in March 2015 and in June 2015 on the television program 60 Minutes she admitted that she did not have cancer or undergo conventional medical treatments. I wrote a blog post identifying the potential civil and criminal offences Ms Gibson may have committed and concluded it was likely no legal action would be taken against Ms Gibson. Subsequently, the Director of Consumer Affairs in Victoria commenced consumer law proceedings against Belle Gibson. In this blog post I outline the case against Belle Gibson and the decision of the Federal Court in the liability proceedings.

Liability proceedings - Director of Consumer Affairs v Gibson [2017] FCA 240

Background

The Director of Consumer Affairs Victoria (Director) commenced proceedings against Ms Gibson on 24 May 2016 alleging contraventions of s 18 (misleading or deceptive conduct), s 21 (unconscionable conduct in connection with goods and services) and s 29 (false or misleading representations about goods or services) of the Australian Consumer Law (contained in Schedule 2 to the Competition and Consumer Act 2010) and the Victorian Consumer Law equivalent provisions.

Ms Gibson had a book (The Whole Pantry), website, Facebook and Instagram accounts, and an Apple and Android App. On all these platforms as well as in media interviews she made numerous misrepresentations relating to having brain cancer and having conventional treatment before turning to natural methods of healing.

Ms Gibson also made a number of representations about proceeds to be donated to charities. In many instances no donations were made. Other charities did receive donations but only after long periods of time had passed, and after the lack of donation had been reported by the charity.

The contraventions were brought against Ms Gibson as well as her company Inkerman Road Nominees Pty Ltd. Ms Gibson did not defend or participate in proceedings. The liability hearing was held on 13 September 2016 and judgment was delivered on 15 March 2017.  

Outcome of liability proceedings

Justice Mortimer found all of the s 18 misleading and deceptive conduct contraventions were made out and some of the s21 unconscionable conduct contraventions were made out. None of the s29 false or misleading representations about goods or services contraventions were made out. Her Honour analysed the cancer and charity representations separately

Cancer and treatment representations

Justice Mortimer found there was no difficulty characterising Ms Gibson’s statements made across her social media accounts and in media interviews as making a representation that she had brain cancer, or a brain tumour and that members of the community would erroneously be lead to believe she was suffering from terminal brain cancer when this was never the case. The implied representation that Ms Gibson had a reasonable basis for believing she had a brain cancer was also made out, as she often described her chemotherapy and radiotherapy treatment, treatment she would not be receiving had she not been professionally diagnosed. Ms Gibson had offered various conflicting explanations including that her initial diagnosis was made in her home by a man who was not a medically qualified professional and then later that he cancer diagnosis occurred at St John of God Hospital in Perth. Justice Mortimer did not have to make a finding in the liability proceedings as to whether Ms Gibson genuinely believed she had brain cancer despite there being no rational or reasonable basis for her to do so,  but this may have to be determined in the penalty proceedings.

Her Honour was not persuaded Ms Gibson had acted unconscionably in making the cancer representations as there was not sufficient evidence to find on the balance of probabilities that Ms Gibson was acting against conscience in deliberately withholding information that she did not have cancer. Ms Gibson may have a psychological or psychiatric issue causing her to be under a delusion about having cancer which is a possibility her Honour considered reasonably open on the evidence.

The s 29 contraventions were not made out. The Director alleged contraventions were made under s 29(1)(e), s 29(1)(f) and s 29(1)(g). Both s 29(1)(e) and s 29(1)(f) require a testimonial to have been made relating to the goods. Ms Gibson’s representations could not be characterised as a testimonial given the term is understood to refer to customer testimonials. The s 29(1)(g) contravention was not made out as it required the Director to make submissions that the representations that diet, health, exercise and wellness could help cure or stabilise cancer were misleading. The Director led no such evidence.

Charity representations

Five categories of representations were considered by Justice Mortimer:

a. App sales donation

Ms Gibson represented on the Whole Pantry website and the description of the android app that a portion of all sales revenue from sales of the Whole Pantry app was being, or would, within a reasonable time be, donated to charities. The implication being that donations would be made reasonably promptly. A portion of all app sales was not donated to charity. The only donation from sales of the app was $2,790 made to the Bumi Sehat Foundation in July 2015 as part of a larger $5,000 donation made over a year after the event purporting to raise money for Bumi Sehat.

b. Company earnings donation

Ms Gibson stated in the introduction to The Whole Pantry book that a large part of everything the company earned is now donated to charities and organisations which support global health, and wellbeing, protect the environment and provide education to those who otherwise wouldn’t have the opportunity. The representation was false as a large part of what the company earned was not donated on a contemporaneous and continuous basis. The evidence disclosed only two donations referrable to the company’s earnings (the Bumi Sehat donation of $5,000 and a $4,823.53 donation to Vestal Water funding a filtration system for Kinfolk Café). A little under $10,000 was donated from the company’s earnings, on no view a large part of everything the company earned when in the relevant period the company received over $420,000 from sales of the app and boo

c. App launch event donation

In notifications on social media for the virtual launch of the Whole Pantry App Ms Gibson represented that proceeds of the sale of the virtual launch tickets would be donated to four charities (the Birthing Kit Foundation, One Girl, Asylum Seeker Resource Centre (ASRC), and TWP Families including the Schwarz Family). On the evidence before the court the ASRC, Birthing Kit Foundation and the Schwarz Family received no donations from Ms Gibson or her company. One Girl received $1,000 in March 2015, only after media had started to investigate Ms Gibson’s claims. Ms Gibson’s then partner donated $1,000 to the ASRC in April 2014 but there was no evidence linking this donation to the app launch event.

d. Schwarz family app sales donation

In November 2013 Ms Gibson stated on the healing_belle Instagram account that 100% of app sales for a week would be donated to the Schwarz family. The representation was false. There was no evidence before the court the Schwarz family received a cent from Ms Gibson. While Ms Gibson maintains she collected $800 in a jar she gave to the Schwarz family, there was no evidence to support this claim and Her Honour found the $800 donation was not made.

e. Mother’s Day fundraising

In May 2014 Ms Gibson stated in media and on the company’s Facebook page that app purchases between 11 May 2014 and 18 May 2014 go straight to the 2h Project and the Bumi Sehat Foundation. The company would donate an extra $1 for each person who purchased the app that week. No funds went straight to the two organisations. More than a year later Ms Gibson made a one off $5,000 donation to Bumi Sehat but there is no evidence these funds were relatable to the Mother’s Day sales.

Justice Mortimer found all five categories of representations constituted misleading and deceptive conduct. Ms Gibson’s marketing of herself and her company centred on the image of a successful and booming enterprise with a wholesale dedication to charitable giving. There were no reasonable grounds for these representations.

Section 21 unconscionable conduct was established. Her Honour inferred that Ms Gibson well knew the potential drawing power of the statements that a portion of sales made would go to charity. Her chosen pitch used groups, such as young girls, sick children and asylum seekers that would evoke sympathy because of their vulnerabilities. Ms Gibson secured a public profile, and financial and personal benefits by deliberately playing on the Australian community’s desire to help those less fortunate.  

The orders -  Director of Consumer Affairs Victoria v Gibson (No 2) [2017] FCA 366

Orders were determined on the papers at a later date after the Director had an opportunity to submit proposed orders and submissions regarding the orders and costs. The orders included an injunction preventing Ms Gibson from making claims that she had been diagnosed with brain cancer at any time prior to 24 May 2016, that she was given four months to live, and that she had taken and then rejected conventional cancer treatments in favour of embarking on a quest to heal herself naturally. Ms Gibson was ordered to pay $30,000 towards the Director’s costs. The matter was adjourned for consideration of penalties.

Summary and penalty proceedings

Ms Gibson was found to have contravened s 18 and s 21 of the Australian Consumer Law for her misleading and deceptive cancer representations and her misleading and deceptive and unconscionable charitable donation representations. An injunction is in place preventing her from continuing to make such representations. While the contraventions have been established, penalty proceedings are yet to occur. While Ms Gibson has not participated in the Federal Court proceedings to date, she may participate in penalty proceedings to offer mitigating evidence or even appeal the decision. The maximum penalty for false or misleading and unconscionable conduct is $220,000 for individuals and $1.1m for corporations. While each course of conduct will be considered separately, regard will also be had to the totality principle to ensure the total penalty is just and appropriate as a whole. It is difficult to predict what the total penalty will be, given the unique circumstances of Ms Gibson’s case, and uncertainty as to whether she will participate in penalty proceedings to offer mitigating evidence such as medical evidence of any psychological or psychiatric conditions she may have been suffering from at the relevant times.  

High Court refuses to extend the advocates’ immunity – Kendirjian v Lepore [2017] HCA 13

On 29 March 2017 the High Court handed down its judgment in Kendirjian v Lepore [2017] HCA 13 (Kendirjian v Lepore), choosing to maintain the advocates’ immunity as recently outlined by the High Court in Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16. Kendirjian v Lepore silences a NSW line of jurisprudence that attempted to extend the advocates immunity. In this blog post I discuss what the advocates immunity is, the extent of the advocates’ immunity prior to Kendirjian v Lepore, and the effect of the decision.

What is the advocates’ immunity?

Advocates’ immunity is a common law doctrine that barristers and solicitors will be protected from claims brought against them arising from their conduct of litigation. For example if a client brings an action in negligence against their barrister for failing to cross examine a key witness on a crucial point in proceedings, the barrister may be protected from the negligence claim by the advocates’ immunity. Some jurisdictions (i.e. the UK and NZ) have abolished the advocates’ immunity completely. The advocates’ immunity applies in Australia in limited contexts. 

What was the extent of the advocates’ immunity in Australia prior to Kendirjian v Lepore?

A distinction is made between advocates’ in-court work and advocates’ out of court work. In-court work such as the example given in the preceding paragraph will attract the immunity. However, out of court work will only attract the immunity if it is sufficiently connected to in court work. The connection required has been described as:

·         “Work done out of court which leads to a decision affecting the conduct of the case in court”; and

·         “Work intimately connected with work in a court”.

These tests were first formulated by the High Court in Giannarelli v Wraith (1988) 165 CLR 543 at 559-560 (per Mason CJ) and were again affirmed by the High Court majority in D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at 31 (per Gleeson CJ, Gummow, Hayne and Heydon JJ). In 2016 in Attwells v Jackson Lalic Lawyers [2016] HCA 16 the High Court again affirmed these tests and refused to extend the immunity. A very brief summary of the three cases follows:

1.       Giannerelli v Wraith (1988) 165 CLR 543; [1988] HCA 52

Mr Giannerelli commenced negligence action against his barrister who allegedly failed to advise he had a good defence to perjury proceedings and failed to object to certain inadmissible evidence tendered by the Crown. The Victorian Full Court held that the advocates’ immunity applied to protect the barrister from the negligence claim. Mr Giannerelli appealed to the High Court. The High Court majority (4:3) dismissed the appeal. Mason CJ’s leading judgment forms the basis of advocates’ immunity jurisprudence in Australia. The following extract from pages 559-560 of the CLR is frequently cited:

“Preparation of a case out of court cannot be divorced from presentation in court. The two are inextricably interwoven so that the immunity must extend to work done out of court which leads to a decision affecting the conduct of the case in court. But to take the immunity any further would entail a risk of taking the protection beyond the boundaries of the public policy considerations which sustain the immunity. I would agree with McCarthy P in Rees v. Sinclair (1974) 1 NZLR 180 where his Honour said (at p 187):

"... the protection exists only where the
particular work is so intimately connected with the
conduct of the cause in Court that it can fairly be
said to be a preliminary decision affecting the way
that cause is to be conducted when it comes to a
hearing".”

The High Court majority held that the immunity applied to Mr Giannerelli’s counsel. Counsel had overlooked the operation of a section of the Royal Commissions Act, failing to raise the section as a defence and failing to raise it as a ground of objection to the reception of evidence. Both these failures fell within the category of in court work as they were clearly incidents of the conduct and management of the case in court.

2.       D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1

Mr D’Orta-Ekenaike was charged with rape and alleged that his legal representatives (Victoria Legal Aid and a barrister engaged by VLA) were negligent in advising him that he did not have any defence to the charge, that he would receive a suspended sentence if he entered a guilty plea at committal, and if he did not plead guilty and contested the charge at trial and was found guilty he would receive a custodial sentence. The alleged negligent advice was supposedly given on two occasions in barristers chambers, two days before the committal hearing and on the day of but before commencement of the committal hearing.

The High Court majority approved the reasoning of Mason CJ in D’Orta. The joint judgment of Gleeson CJ, Gummow, Hayne and Heydon JJ quoted the passage of Mason CJ extracted above, summarising the test as “work done out of court which leads to a decision affecting the conduct of the case in Court” or “work intimately connected with work in a court”. I have extracted the relevant paragraph:

“Again, we consider that no sufficient reason is proffered for doing so. In particular, there is no reason to depart from the test described in Giannarelli as work done in court or "work done out of court which leads to a decision affecting the conduct of the case in court"or, as the latter class of case was described in the Explanatory Memorandum for the Bill that became the Practice Act, "work intimately connected with" work in a court. (We do not consider the two statements of the test differ in any significant way.)”

The advice given to Mr D’Orta-Ekenaike was advice about whether to enter a plea at committal. A committal effects whether the matter goes to trial. The advice on plea was work an advocate did out of court but led to a decision which affected the conduct of the case at the trial. The advocates’ immunity therefore applied.   

3.       Attwells v Jackson Lalic Lawyers [2016] HCA 16

A bank commenced proceedings against a company and its guarantors. On the first trial day of proceedings in the Supreme Court of New South Wales, counsel for the guarantors informed the court the proceedings had settled, and consent orders reflecting the settlement were made by the court. The guarantors then commenced action against counsel alleging negligence in the advice to consent to judgment being entered against them in the terms of the consent orders and in failing to provide advice as to the effect of the consent orders.  

Counsel for the guarantors sought to extend the advocates’ immunity, arguing that the immunity extends not only to negligent advice leading to a final judicial determination but also to negligent advice that leads to an agreed settlement. The High Court unanimously rejected this argument which they categorised as out of court work with insufficient connection to in court work:

“In short, in order to attract the immunity, advice given out of court must affect the conduct of the case in court and the resolution of the case by that court. The immunity does not extend to preclude the possibility of a successful claim against a lawyer in respect of negligent advice which contributes to the making of a voluntary agreement between the parties merely because litigation is on foot at the time the agreement is made. That conclusion is not altered by the circumstance that, in the present case, the parties' agreement was embodied in consent orders”.

In 2016 the High Court was constituted by French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ. In 2017 with the departure of Chief Justice French, Justice Kiefel stepped up to the role of Chief Justice and Justice Edelman was appointed as a new judge of the High Court. The constitution of the court deciding Kendirjian v Lepore was therefore different to the High Court that decided Attwells in 2016. Nethertheless, the High Court refused to reconsider Attwells or extend the situations in which the advocates’ immunity will protect barristers and solicitors from suit.

Conflicting NSW authority

Prior to Attwells, the NSW Court of Appeal handed down the decision of Donnellan v Woodland [2012] NSWCA 433 (Donnellan). Mr Woodland commenced proceedings against his lawyers who had provided advice about offers to compromise (offers to settle outside of court proceedings usually in an effort to avoid the costs associated with court proceedings - these offers can continue to be made even when court proceedings have commenced) in drainage easement proceedings under s88K of the Conveyancing Act 1919 (NSW). It was not necessary for the Court of Appeal to decide whether the advocates’ immunity applied because they found Mr Donnellan had not been negligent. Nevertheless, Macfarlan J (with whom Leeming JA and Begin CJ in Eq agreed), found that if Mr Donnellan had been negligent, the immunity would have applied, as the omission or conduct relating to the offers to compromise had affected the conduct of the case in the court by requiring the court proceedings to continue. 

I won’t go into the details of the case too much because:

1.       It is a clear case of judicial activism on the part of the Court of Appeal (3 judges of the 5 on quorum) to extend the immunity in the face of clear High Court authority to the contrary, especially when it was not necessary to determine the issue; and

2.       Although the District Court and Court of Appeal (3 judges unanimously) in Kendirjian v Lepore relied on the case, the High Court rejected the NSW approach, as it is incongruous with both D’Orta-Ekenaike and the more recent High Court authority of Attwells.

Facts and background of Kendirjian v Lepore

Mr Kendirjian was injured in a car accident in November 1999 and commenced legal proceedings against the driver for damages. On the first day of the District Court trial the driver offered to settle for $600,000 plus costs. The offer was not accepted, the trial proceeded and Mr Kendirjian was awarded only $308,432.75 plus costs by the District Court judge. Mr Kendirjian commenced negligence proceedings against his solicitor Mr Lepore and his barrister, who both claimed that the advocates’ immunity protected them from the negligence claims.

The District Court and Court of Appeal both held that the advocates’ immunity protected Mr Kendirjian’s legal representatives from his negligence claim. Both courts relied on the obiter dicta in Donnellan to support their conclusions.

Question to be determined by the High Court

Does the immunity extend to negligent advice given to reject a settlement offer where court proceedings are on foot?

High Court analysis

The High Court unanimously held that the advocates’ immunity did not extend to protect Mr Kendirjian’s legal representatives from the negligence action. Edelmen J wrote the leading judgment. Edelman J reiterated the importance of the 2016 case of Attwells where a High Court majority held the advocates’ immunity did not extend to advice which leads to a compromise of litigation by agreement between parties, or advice not to settle proceedings which leads to the continuation of proceedings (note that Nettle J and Gordon J dissented on the advice not to settle point). There must be a functional connection between the advocate’s work and the determination of the case. Negligent advice not to settle proceedings gives rise only to a historical connection between the advice and continuation of litigation and this is not a sufficient connection for an advocate to be immune from suit.

The appellants argued that Attwells should be distinguished and in the alternative that Attwells should be reopened to reconsider the part of the decision where the joint judgment approves the remarks of Mason CJ in Giannarelli. Counsel argued that part of Mason CJ’s remarks in Giannerelli had not been approved by the joint judgement in D’Orta-Ekenaike and that therefore the scope of the immunity could be extended. Edelmen J refused to accept this argument, stating that there is no apparent difference between work done affecting the conduct of the case in court and work done affecting the way that case is to be conducted at the hearing, and even if there was a difference, this was not evident in the joint judgment in D’Orta-Ekenaike.

The appeal was unanimously dismissed by the High Court. However, Justice Nettle and Justice Gordon departed from the majority in their reasoning. Nettle J agreed that the advocate’s immunity did not apply in light of the High Court’s decision in Attwells but reiterated the view he expressed in Attwells that the advocates’ immunity should be extended to situations where negligent advice leads to the rejection of a settlement offer and a less favourable outcome at trial. The immunity should be extended as where the negligence action proceeds it is likely to result in the re-litigation of issues determined at trial.  Gordon J acknowledged the appeal should be dismissed in light of Attwells but agreed with Nettle J’s additional reasons and reiterated her position as expressed in Attwells that the immunity should be extended.

Short summary of the law today

The advocates’ immunity will apply where the work done out of court leads to a decision affecting the conduct of the case in court or where the out of court work is intimately connected with work in a court. The connection must be more than merely a plausible historical connection. There must be a functional connection between the work of the advocate and the determination of the case. The giving of advice either to stop or continue litigation does not itself affect the judicial determination of the case.

Costs in the cause v costs follow the event – what is the difference?

In this blog post I explain the related but different concepts of costs follow the event and costs in the cause. I personally find costs to be an uninteresting topic of law, but if you work in litigation, knowledge of basic costs principles and orders is essential. The simplest way to remember the difference is to understand that costs follow the event is a principle and costs in the cause is an order. While I have used examples from South Australia, the jurisdiction I work in, the content is applicable to other Australian jurisdictions.

The principle – costs follow the event

The principle that costs follow the event is a common law principle that the unsuccessful party pays the legal costs of the successful party in litigation. In simple terms, the loser pays their own costs and the costs of the winner. Where there are multiple events in an action, the costs will be allocated separately for each event, though there will often be a dispute as to whether events are separate or part of the main action. A court may decide to depart from the principle in certain situations after considering the nature of the action, the complexity of the factual and legal issues, the profile of the parties and publicity associated with the matter and the amount recovered.

The common law rule that costs follow the event had been included in statute or rules in most jurisdictions. For example, in South Australia r 263(1) of the Supreme Court Civil Rules 2006 provides that “as a general rule, costs follow the event”. This general rule is subject to more specific rules such as that “the costs of an amendment are to be awarded against the party making the amendment” (r 263(1)(a)). However, costs are awarded at the court’s discretion (see s 40 of South Australia’s Supreme Court Act 1935) and the general rule and more specific rules are subject to orders to the contrary.

The order – costs in the cause

Costs in the cause is an order that costs from an interlocutory hearing (for example) will form part of the general costs and be awarded to the successful party in the action. Costs in the cause orders have existed for over a century in Australia, with the NSW case of Dubbo Refrigerating & Co v Rutherford (1898) 14 WN (NSW) 180 often cited as authority for the interaction between costs in the cause orders and general costs principles.

In Dubbo Refrigerating the plaintiff was suing the defendant for unpaid work boiling down 17,023 of the defendant’s sheep for tallow (sheep fat, commonly used in the 1800s to produce shortening for processed foods and deep frying). Two commissions had occurred in which costs in the cause had been ordered. The plaintiffs were awarded general costs after the hearing. As the case is not readily electronically available I have extracted the key paragraph:

“The costs in both commissions were ordered to be costs in the cause, but it is now said that although the evidence was accepted by the jury as in favour of the defendant, the plaintiffs are entitled to the costs because they are entitled to the general costs of the action.  “Costs in the cause” merely means costs not now disposed of; after the trial they have to be disposed of with the costs of the trial, which are themselves costs in the cause, according to certain settled principles of law which the Prothonotary has followed. Issues are divisible, and if some issues are found for the defendant, although the plaintiff may be the successful party in the action, still the defendant gets the costs of those issues upon which he has succeeded, although they may at first have been costs in the cause. Here the Prothonotary is entitled to assess the costs of these commissions in favour of the party who was successful upon the issues to which the evidence in question was directed, and he has done so. If a plaintiff takes out a commission, and examines a witness whose evidence turns out at the trial to be absolutely immaterial, is the defendant to pay the costs merely because the plaintiff is entitled to the general costs of the action? So here, why should the defendant have to bear the cost of witnesses whom he called to establish his case, and who were in fact instrumental in establishing it? The evidence of these witnesses was within the same category exactly as if the witnesses had been present at the trial, and I am of the opinion that the Prothonotary has acted upon the proper principle in allowing them to the defendant.”

There are several advantages of obtaining an order for costs in the cause versus relying on the principle of costs follow the event, including that the order is not subject to the exceptions that apply to the principle, and the order will ordinarily be respected by the trial judge or an appellate court. It would be very unusual for a court to amend or substitute a costs order made earlier in proceedings. In the case of Koosen v Rose (1897) 45 WR 337 (often incorrectly cited as Coosen v Rose (1897) 45 WR 337) an order for costs in the cause was made in chambers for the costs of the chambers application. At trial the judge interfered with this order, making the plaintiff pay his own costs for the application in chambers. On appeal, the Court of Appeal decided that the trial judge had no jurisdiction to interfere with the costs order of the proceedings in chambers.  

Note the difference between the orders costs in the cause and “plaintiff’s costs in the cause” (more commonly made) or “defendant’s costs in the cause” (rarely made). A “plaintiff’s costs in the cause” order means that if the plaintiff is ultimately awarded costs of the action, the costs the subject of the interlocutory application become part of that. If the plaintiff is not ultimately awarded costs of the action, there is no order as to the costs the subject of the interlocutory application. Often a costs order is requested through an interlocutory application, though orders as to costs prior to the event are often made by consent or otherwise in directions hearings.

 

Probation periods and minimum employment periods – a guide for employees

It is common for an employer to place a new employee on a probation period ranging from a few weeks to a few months. The intention of a probation period is for the employer to assess the employee’s performance and ensure their suitability of the role. In this blog post I detail the legal position of employees on probation and explain how the probation period and unfair dismissal regime interact. Information in this blog post is only relevant to national system employees (see sections 13 and 14 of the Fair Work Act 2009).

Characteristics of probation periods

The length of a probation period can be found in the employment contract and/or letter of engagement. Employees on probation are entitled to accrue and access entitlements provided under the Fair Work Act 2009 (FW Act) including annual leave and sick leave. Probation is not a separate period of employment and any entitlements accrued will carry over after probation has ended.

At the end of a probation period you should receive a letter confirming that your probation period has ended and that your employment will continue. Ideally you will also have a meeting with your employer at this time to receive feedback.

How long can a probation period be?

The length of a probation period is at the discretion of the employer. However, note the information below about the minimum employment period and protection from unfair dismissal. A probation period is a separate concept to a minimum employment period. A probation period is selected by the employer and reflected in the employment contract or letter of engagement, whereas the minimum employment period is a statutory period set under s.383 of the FW Act. While it is logical for an employer to select a probation period the same as a minimum employment period (generally 6 months), this will not be the case in every situation.

An employer can only extend a probation period if the employment contract allows for an extension or if the employee agrees to the extension. In contrast an employer cannot extend the statutory minimum employment period (discussed below).

What if I do not pass a probation period?

An employer does not have to wait until the completion of a probation period to terminate an employee. Employees who do not pass a probation period are still entitled to receive the appropriate notice for the cessation of their employment and be paid out unused annual leave and other accrued entitlements. The minimum notice requirement where an employee has 1 year or less continuous service is 1 week of notice.

While an employee who fails to pass a probation period may not be protected from unfair dismissal, the employee may be able to take action against their employer under general protections laws, anti-discrimination laws, or breach of employment contract. Employees should also familiarise themselves with any additional rights provided in an applicable award or enterprise agreement.

Can I make an unfair dismissal claim?

The unfair dismissal regime in the FW Act is available to employees who earn less than the high income threshold (currently $138,900) and who have completed the minimum employment period (s.382). The minimum employment period is 6 months or 1 year for small business employers (s.383). The probation period and the minimum employment period may overlap, as employers often choose a six month probation period, enabling the employer to terminate the employee’s employment prior to the end of the probation period, meaning the employee is not protected from unfair dismissal. However, it is possible for a probation period to be longer than the minimum employment period. For example where a probation period for an employee working for a large company is 12 months and an employee’s employment is terminated at 11 months, the employee will be protected by the unfair dismissal regime as the six month minimum employment period will be satisfied.  

Remember that an unfair dismissal application must be made within 21 days of the date of dismissal so if you believe you have a claim you should seek legal advice as soon as possible after the date of dismissal (s 366 Fair Work Act 2009).  

Why the confusion?

The difference between a probation period and a minimum employment period appears straight forward. Confusion among practitioners and those working in human resources appears to have arisen from hanging on to old concepts that applied under the old Workplace Relations Act 1996 (WR Act).

Section 643 of the WR Act provided that an employee wishing to make an application relating to their termination of employment must among other criteria have served the qualifying period of employment. The definition of qualifying period of employment differs from the definition of the minimum employment period under the FW Act. Section 643(7) of the WR Act provided:

(7)  For the purposes of subsection (6), the qualifying period of employment is:

(a)  6 months; or

(b)  a shorter period, or no period, determined by written agreement between the employee and employer before the commencement of the employment; or

(c)  a longer period determined by written agreement between the employee and employer before the commencement of the employment, being a reasonable period having regard to the nature and circumstances of the employment.

As you can see from the wording of the section, the WR Act allowed the employee and employer to agree to a shorter or longer qualifying period of employment. It was therefore practical for employers under the old WR Act to make the qualifying period of employment the same as the probation period and the qualifying period of employment was often referred to as the probation period. This flexibility to agree on a shorter or longer qualifying period no longer exists. The FW Act provides a statutory minimum employment period of 6 months (1 year for small business employees) and this is a separate concept to a probation period the employer may include in a contract of employment.

Secondments – Can an employee choose not to go on secondment? Can sending an employee on secondment constitute adverse action?

Introduction

Secondments are arrangements where an employee is temporarily transferred to work in another office (internal secondment) or for a different legal entity (external secondment). While working for the host, the secondee will remain employed by their employer.

Secondments in the legal industry are very common. Lawyers working at large commercial law firms are often sent on short term secondments to work in-house for a client. There are a number of benefits that flow from this arrangement. The client gets specialty legal advice and the seconded lawyer can help upskill the client’s staff on basic legal matters. In return the seconded lawyer builds connections with the client and hopes to obtain further work with the client when they return from secondment. The seconded lawyer continues to be employed and paid by the law firm. The law firm will have a separate agreement with the client as to how much the client pays for the secondment. Ordinarily this rate will be the lawyer’s wages plus a fee the law firm takes for providing the services.

Ordinarily a secondment is a great short term professional development opportunity for the employee concerned. However, there are some situations where an employee may not welcome a secondment, such as where the employee is concerned about relocating to another location, that the placement will involve deskilling, would make performance management difficult or would involve a significant amount of new training. In these situations, is an employee able to refuse to go on secondment?

Can an employee refuse to go on a secondment?

Lawful employer directions

Generally speaking if an employee is directed to go on secondment by their employer and this direction is a "lawful direction" then the employee must go on the secondment. A lawful direction is one which relates to the subject matter of the employee’s employment, involves no illegality and is reasonable (see Dixon J in R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday (1938) 60 CLR 601 – this case concerned a provision of an award but the provision adopted the common law test for a lawful direction).

Generally speaking it will not matter that the work completed on secondment is not interesting or that there is not enough work for a secondee. There is no common law right for an employee to be provided with work or meaningful work (note this common law position may be altered by an applicable enterprise agreement, contract of employment, or other workplace instrument).

It is important to note that an employee does not have to comply with a direction that is unlawful. Therefore if a direction to go on secondment breaches an employer’s obligation under the Fair Work Act 2009 (Fair Work Act), the employee does not have to comply with the direction. Employees should be particularly alert if the secondment occurs at the same time as a significant change within their employer’s organisations such as a new outsourcing arrangement or a merger.

Can sending an employee on a secondment be adverse action?

In the recent case of McJannet v Special Broadcasting Services Corporation t/as SBS Corporation [2016] FCCA 2937 the Federal Circuit Court considered whether sending an employee on secondment can constitute adverse action.

Ms McJannet was employed by SBS as a Presentation Coordinator Supervisor within the Technology and Distribution Division. She had worked for SBS since 1982. In late 2014 SBS entered into an agreement to outsource its playout operations to Deluxe Australia Pty Ltd. As a consequence of the outsourcing:

A number of SBS employees of the T&D division (excluding Ms McJannet and some others) were offered and accepted employment with Deluxe; and


SBS decided to retain Ms McJannet and a number of other members of the T&D division as employees. Ms McJannet was then directed to go on secondment with Deluxe in order to perform the requirements of her position.

Ms McJannet took a period of leave, resigned on 14 March 2016, and did not go on the secondment. Despite her resignation SBS encouraged her to reconsider her resignation and recommence employment but she did not take up this offer and her employment with SBS ceased.

Ms McJannet alleged a number of contraventions of the Fair Work Act and her contract of employment. Relevantly for this blog post, Ms McJannet claimed adverse action had occurred under s.340 of the Fair Work Act when SBS decided to require her to undertake a secondment (or otherwise resign) and not pay her redundancy. Section 340 of the FW Act provides that a person must not take adverse action against another employee because the other person has a workplace right (etc) to prevent the exercise of a workplace right by the other person. Ms McJannet claimed she had a right to redundancy payout. Adverse action is defined in s.342 of the Fair Work Act. Adverse action is taken by an employer against an employee if the employer injures the employee in his or her employment (s.342(1) Item 1(b)) or alters the position of the employee to the employee’s prejudice (s.342(1) Item 1(c)). SBS submitted that adverse action had not occurred as there was no "injury" or prejudicial alteration to her position, and she was not entitled to a redundancy payment.

Judge Altobelli found there was no adverse action. Ms McJannet was never in scope to be offered employment with Deluxe and was never offered a financial settlement as a consequence of the outsourcing. Judge Altobelli found the proposed secondment did not require the functions of Ms McJannet’s position to be transferred to another location and therefore she was not eligible for a redundancy under the relevant clause of the enterprise agreement. Ms McJannet was directed to go on secondment to Deluxe and was not offered resignation as an alternative.

Ms McJannet was particularly concerned about being sent on secondment because she believed it would involve deskilling, make performance management difficult, involve a new work location, involve new training, and raise problems with her supervising team located physically apart from her. Judge Altobelli found that no aspect of the secondment would have altered the position of the applicant to her prejudice and that there was no adverse action. 

 

Summary

Ordinarily, if an employee is directed to go on secondment by their employer and the direction is a lawful direction, the employee will have to go on the secondment regardless of whether the employee has to change physical work location or whether the employee will be getting challenging or interesting work. Employees should look out for any additional factors that may affect their employer’s power to send them on a secondment, such as a Secondment Policy or relevant provisions of an enterprise agreement.

It is possible that requiring an employee to go on secondment may constitute adverse action in certain factual circumstances. However, the case of McJannet v Special Broadcasting Services Corporation t/as SBS Corporation [2016] FCCA 2937 indicates that it will be difficult to establish that being sent on secondment "alters the position of the employee to the employee’s prejudice" or "injures the employee in his or her employment" under s.342 of the Fair Work Act. 

 

For further reading I recommend the case of Westpac Banking Corporation v Wittenberg [2016] FCAFC 33 which involves complicated legal issues arising from five secondments that occurred during the merger of St George Bank with Westpac Banking Corporation. You may also wish to read Swiegers v Commonwealth Scientific and Industrial Research Organisation [2015] NSWDC, a decision concerning the employer’s failure to provide a role for the secondee when the secondee returned to the employer from secondment.