Dismissing an employee for pulling a sickie: employers beware

Many employers would argue that pulling a sickie is ingrained in Australian culture. Employers are often sceptical about the reasons for an employee’s absence, especially when such absences fall repeatedly on a Friday, or a Monday and no doubt ask themselves: is there anything I can do about it?

Under the Fair Work Act 2009 (Cth) (Fair Work Act), an employee may take a period of personal/carer’s leave only if the leave is for a permitted reason.  Permitted reasons include because the employee:

1. is not fit for work because of a personal illness, or personal injury, affecting the employee; or
2. is required to provide care or support to a member of the employee’s immediate family or household.

Generally, employees may be required to provide a medical certificate as evidence that the leave taken was for a permitted reason – a relatively easy task which involves attending a medical appointment and asking the practitioner to write a certificate.  Given the relatively accessible nature of medical certificates, there is a perception that they are a “get out of jail free” card by some employees who believe they cannot be questioned about their leave if they provide a medical certificate.

This begs the question of what rights do employers have to “dig deeper” and find contrary evidence against employees who are suspected of taking advantage of their personal leave entitlements?  Employers may find a helpful friend in social media outlets, with some employees being unable to resist the urge to post personal photos of their activities.

A Wiggles Concert.

Sean Mamo v Robjan Pty Ltd t/a Yarrawonga Toyota [2019] FWC 7900 

Mr Mamo was a car detailer, was employed by Robjan Pty Ltd trading as Yarrawonga Toyota.

On 28 June 2019, Mr Mamo purported to take personal leave.  The reason given to his employer was that he was required to care for his son who was unwell.  However, Mr Mamo instead attended a Wiggles concert with his son that day.

Unfortunately for Mr Mamo, a photograph of him and his son was published on social media and was subsequently brought to the employer’s attention.  Mr Mamo was terminated from his employment on the basis that he engaged in misconduct by falsely taking personal leave.  Mr Mamo made an unfair dismissal claim with the Fair Work Commission arguing that his dismissal was unfair as the false claim for personal leave was not serious enough to warrant dismissal.

The Fair Work Commission held that the dismissal was not harsh, unjust or unreasonable in the circumstances.  Deputy President Colman held that:

1. claiming personal leave to which one is not entitled is dishonest, and therefore a breach of the employee’s duty of good faith;
2. it seeks to obtain a financial advantage by deception, by claiming payment for an absence on the basis of a false assertion; and
3. it asserts a legitimate right to be absent from work when none if fact exist.

The pull to attend the game proves too much.

Anderson v Crown Melbourne Ltd [2008] FMCA 152

In another example, an employee who took sick leave to attend a football game was dismissed.

Mr Anderson, an employee of Crown Casino was a ‘fanatical’ Essendon supporter. He took sick leave to fly to Perth to attend an Essendon match and provided a doctor’s certificate for his absence upon his return.

The employee had told several co-workers of his intention to attend the game. His employer had also become aware of his intention.

The employee was questioned by his manager prior to his absence, who warned that misusing sick leave was very serious, and could result in termination. The employee responded by saying he would have a doctor’s certificate.

The employee did call in sick, and then attended the game. He was subsequently terminated by Crown. The employee brought proceedings alleging his termination was in contravention of the Fair Work Act 2009.

The court found in favour of Crown, deciding the employee had been dismissed due to a misuse of sick leave entitlements, not due to a temporary absence because of illness.

Importantly, the Court warned that a medical certificate should (as a general rule) be accepted, and non-medically qualified persons should not, in the usual course of things, question a medical opinion. It went on to say that only in the most ‘unusual and exceptional circumstances’ would an employer be justified in not accepting the validity of a medical certificate.

The Court found this case was such an exceptional case as:

• The employee had already purchased the match and plane tickets prior to seeing his doctor;
• On the day he took sick leave, the employee was in fact in perfect health;
• Importantly, when attending to obtain the medical certificate, the employee had informed the doctor he wanted the medical certificate as he wanted to take the day off to attend the Essendon match.

But these cases are not the golden rule.

Marshall v Commonwealth [2012] FMCA 1052

Conversely to Crown and Mamo, in Marshall v Commonwealth the Federal Magistrates’ Court held that the existence of unusual circumstances did not give an employer the right to disregard a medical certificate.

Mr Marshall was employed as a weather observer with the Bureau of Meteorology. He had been absent from work due to an adjustment disorder. However, he was subsequently certified as medically fit to return to work in the Brisbane office by a doctor appointed by his employer.

Instead of returning, Mr Marshall obtained a further report from his own practitioner indicating that the Brisbane position was not suitable and that the employee’s adjustment disorder had been aggravated. The practitioner provided the employee with a further certificate of medical unfitness.

Whilst still too unwell to return to work, Mr Marshall applied to take part in the reality show “Beauty and the Geek,” and was accepted.  Mr Marshall intended to take leave without pay to appear on the show.

Although Mr Marshall subsequently decided not to appear on the show the BOM terminated his employment for non-performance of duty. As a result, Mr Marshall elected to take part in the show.

Mr Marshall then brought an action claiming he had been unlawfully terminated. In reply, BOM relied upon the decision of Anderson v Crown.

The court however found in favour of the employee and the Court ordered the employee to be reinstated.

The Court warned against reliance upon Anderson v Crown, indicating the case was decided on very peculiar facts and was not authority in favour of employers ignoring medical certificates.

Looking at the facts of the case before it, the court found that the employee’s medical practitioner had provided a detailed and comprehensive medical report indicating the employee was unfit to return to work, but was sufficiently fit to take part in Beauty and the Geek (and this experience may have been therapeutic). There was also no evidence to suggest the employee’s medical practitioner had issued the certificate dishonestly, and the Commonwealth led no medical evidence in support of its position.

Key lessons.

It is important for employers to:

1. ensure employees are taking personal/carer’s leave for permitted reasons and in accordance with the Fair Work Act or applicable modern award;
2. have up-to-date policies outlining employees’ entitlements to personal/carer’s leave, and the process for taking leave;
3. employers should rarely (if ever) rely upon their own opinion to not accept a medical certificate.  Unless you are a qualified medical practitioner, the Courts will not allow an employer to question a doctor’s opinion.

Employers must tread carefully if concluding activities engaged in by an employee outside the workplace are inconsistent with a medical certificate. A lay opinion that an activity is inconsistent with a medical certificate will usually not be accepted.

If you suspect an employee is taking personal/carer’s leave for a reason that is inconsistent with the Fair Work Act, consider directing the employee to attend an independent medical practitioner for assessment and seek legal advice.

Contact us

If you require further assistance or information in relation to leave obligations, or if you require any detailed advice, please contact our expert Workplace Relations team.