Australia: A doctor's certificate is no shield to dishonest conduct

Last Updated: 1 April 2016
Article by Mark Curran

Council Human Resource departments will be interested to know that an employee who takes paid personal leave is not protected from disciplinary action associated with taking that leave simply because a medical certificate has been provided. Employers who wish to take disciplinary action against an employee who has attempted to take personal leave inappropriately, may be able to do so where there is evidence of dishonesty on the part of the employee.

Case Law

In Anderson v Crown Melbourne Ltd [2008] FMCA 152, the Applicant attended an interstate football match on 1 September 2007, between Essendon and West Coast. The Applicant's Employer at the time, Crown Melbourne Ltd, dismissed the Applicant as a result of his attendance at the football game, which required the Applicant to make a trip to Perth.

The Applicant claimed his dismissal contravened s 659 of the Workplace Relations Act 1996 and said his employment was terminated because of a temporary absence from work because of illness or injury which is prohibited by s 659. Crown Melbourne Ltd argued the termination was not unlawful. Burchardt FM agreed with Crown Melbourne Ltd on the basis that it was clear Mr Anderson was in good health at all times up to and including 1 September 2007, meaning his absence was not caused by illness or injury. Burchardt FM said in his decision that Crown Melbourne Ltd did not dismiss Mr Anderson because he was absent from work because of a temporary illness, but rather because he had misconducted himself in doing so.

In the case of Walker v Bowtie Removals and Storage Pty Ltd [2012] FWA 2851, the Applicant chose to go down the route of taking sick leave rather than applying for annual leave, in order to travel to Perth for a family event. The Applicant obtained a medical certificate claiming her leg was infected in order to take sick leave. The event was subsequently cancelled, but the Applicant decided to travel anyway. The Employer suspected the Applicant was going on a holiday after she was seen printing airline tickets at the work printer. The Employer began IT investigations that showed the Applicant had deleted all emails about the holiday on her work computer, one of which reprimanded her son for sending details of the holiday to her work account.

Commissioner McKenna noted section 385 of the Fair Work Act 2009 , which states that a person will be found to have been unfairly dismissed if it is satisfied the dismissal was not consistent with the Small Business Fair Dismissal Code ("the Code"). It was undisputed that the business in question was a small business, and the Code states that it is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal.

The Commissioner concluded that in the context of the Code, it was fair for the Employer to dismiss the Applicant without notice or warning in circumstances where it was believed on reasonable grounds "going fundamentally to good faith, fidelity and trust" that the applicant's conduct was sufficiently serious to justify immediate dismissal.

On the other hand, there are some cases where unusual circumstances do not give the Employer a right to take disciplinary action. In Marshall v Commonwealth of Australia (Represented by the Bureau of Meteorology) [2012] FMCA 1052, the Applicant brought a claim of adverse action against his Employer (BOM) when it dismissed the Applicant after he had planned to appear on a television show called Beauty and the Geek, despite his being on sick leave.

Federal Magistrate Whelan discredited parallels drawn to Anderson v Crown Melbourne Ltd noting that Anderson does not give Employers the power to simply ignore medical certificates issued by registered medical practitioners. Whelan FM further noted that the issuing doctor in this case showed no signs of dishonesty in issuing the Applicant with a certificate, ad that he clearly knew the Applicant well.

In Mr Robert Van Den Enden v Bechtel Construction (Australia) Pty Ltd [2013] FWC 4377, the Applicant informed his Employer he would be leaving work early to join some other employees at the Gladstone races. When told this leave was unauthorised, the Applicant said he was "just sick" and left the workplace. Interestingly, despite significant scepticism on the part of the Employer, the Applicant was found not to have taken unauthorised leave on the basis that there was no evidence challenging the medical certificate.


The decisions noted above are helpful to Employers who wish to take disciplinary action against employees who attempt to take personal leave for invalid reasons. Although (generally) medical certificates are taken as evidence of an employee's incapacity to work, the abovementioned cases demonstrate that Courts are prepared to acknowledge that not all personal leave is taken in circumstances where the employee's leave is for genuine reasons. Employers can therefore challenge a medical certificate where there is reasonable cause to believe that the employee is acting in a manner which exceeds or abuses their right to personal leave. If an Employer wishes to challenge a medical certificate, this will usually involve requesting further medical reports.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.