Australia: Can chucking a sickie be grounds for dismissing an employee?

The summer months can be frustrating for employers, as hot weather and sunny skies may tempt employees to 'chuck a sickie' and enjoy a day away from work. The lure is particularly strong on the Mondays and Fridays that shoulder a public holiday on a Tuesday or Thursday – the chance at a long weekend can be too good for some to pass up.

For employers, it can be difficult to determine whether an employee's reason for sick leave is genuine or whether disciplinary action is warranted for misuse of sick leave entitlements.

Can taking paid sick leave for non-health related purposes be grounds for a dismissal? Yes, although the approach of the Fair Work Commission (FWC) to dismissals for abusing sick leave entitlements varies from case to case.

In Walker v Bowtie Removals and Storage Pty Ltd [2012] FWA 2851, an applicant for unfair dismissal remedy took sick leave rather than applying for annual leave to go on a family holiday. The employer's investigations revealed that she had deleted emails about the holiday from her work computer, including one in which she told her son not to send holiday details to her work account. Despite the applicant's medical certificate, Commissioner McKenna of the FWC found that the employee's conduct was sufficiently serious to justify dismissal.

However in Marshall v Commonwealth of Australia (Represented by the Bureau of Meteorology) [2012] FMCA 1052, a similar set of circumstances yielded different results. In this case, the applicant had taken sick leave to be part of the television show 'Beauty and the Geek'. Whelan FM of the FWC stressed that employers should not simply dismiss medical certificates in the face of contradicting facts, especially when there is no evidence of dishonesty on the part of the medical practitioner. She ordered that the applicant's employment be reinstated.

An example of different disciplinary action being taken on a larger scale is the case of Delta Coal Mining Pty Ltd v Construction, Forestry, Mining and Energy Union [2016] FWC 9146. There, 81 Union employees had taken simultaneous paid sick leave in December 2016, which Delta considered to be industrial action. Deputy President Sams of the FWC found that it was 'utterly implausible' that this effort was a coincidence, and rather it was a coordinated industrial campaign against wages and conditions in the Appin mine. He ordered that the industrial action cease.

Key takeaways for employers

• Under the national employment standard in the Fair Work Act and most Awards and Enterprise Agreements (Relevant Provisions), employers are entitled to reasonably request evidence to support an employee's absence on personal leave. This is usually a medical certificate, or a statutory declaration where providing a medical certificate is not reasonably practicable.
• Where there is reason to believe an employee may be abusing their leave entitlements, evidence can be gathered through social media or the employee's work email account. However, the employer should not disregard a medical certificate in the face of other gathered evidence.
• Where an employer believes that disciplinary action is warranted, it is important to consider the past record of the employee, and any real consequences that flowed from the employee's unauthorised day off.
• The above cases show that the FWC may accept that some employees take sick leave for reasons that are not genuine. However, before considering an employee's dismissal, employers should have both a reasonable cause to believe the employee is abusing their sick leave entitlements and sufficient evidence to prove their suspicions.
• There are risks associated with dismissing an employee or taking other disciplinary action for a temporary absence from work due to illness or injury. If the employee challenges the dismissal, the consequences for the employer can include reinstatement, significant compensation or civil penalties for breaches of the Relevant Provisions, including personal culpability for those 'knowingly concerned' in the breaches. In light of these risks, employers should seek legal advice in cases involving the dismissal of an employee for an absence from work.

This article is intended to provide commentary and general information. It should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this article. Authors listed may not be admitted in all states and territories