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Wednesday, May 20, 2009

Surfing while sick 'is OK'

The Press

SURF'S UP: Surfing while on sick leave is not a sackable offence.

A champion surfer has caught a break in more ways than one, with the Industrial Relations Commission in Australia finding that going surfing while on sick leave is not a sackable offence.

Shane Bevan, a former world championship tour surfer, was sacked from his baggage handler's job after his then employer discovered he took part in Queensland's Coolum Classic surf contest while on sick leave with a bad back, the Australian reported.

The IRC initially upheld his sacking but, on appeal, a commission full bench last week supported Bevan's claim that the termination was harsh, unjust and unreasonable and ordered the company to pay compensation.

Bevan injured his back while working for Oceania Aviation Services.

Bevan saw an osteopath who issued him with a medical certificate covering the period to Sunday, September 16, 2007. While on leave, his grandfather died and he travelled to Sydney to be with relatives before returning home two days later.

In memory of his grandfather, he decided to compete in the Coolum Classic of which he was the reigning champion scheduled for the next day.

The day he surfed was a rostered day off; his back had improved and he revisited his osteopath, who was happy with his progress.

He spoke to his work supervisor to check someone was taking his shift on the Sunday, although this was unnecessary given he had a medical certificate that covered the period to and including the Sunday.

Upon returning to work on the Monday, 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''. His employment was terminated.

The Australian reported that the commission upheld the sacking, finding Bevan misled the company about his physical capabilities and did not acknowledge he had been in the surfing contest when first asked.

However, a commission full bench overturned the findings, noting Bevan participated in the surfing tournament on his regular rostered day off.

"He went surfing in his own private time and not during a time when he was rostered to attend work,'' the full bench said.

"It is also important to note that Bevan, after organising a shift swap on the Sunday, (despite being covered by a medical certificate) attended work on the Monday (his next rostered shift) ready and able to perform the full range of his duties."

After lengthy evidence about which muscles Bevan used at work and which he used surfing, the full bench noted the osteopath did not agree that Bevan had put his injury at risk by surfing.

The osteopath's evidence did not support a conclusion that Bevan was fit to resume work in light of his participation in a surfing competition.

Bevan also did not mislead the company about his fitness to resume normal work, given it involved heavy lifting.