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
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 
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)  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  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
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
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
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
An employer's duty is very high and can include engaging experts to inspect things such as stairways for latent defects.
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”
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).