When misusing personal leave can result in disciplinary action
There tends to be an assumption amongst managers that once a medical certificate has been provided by an employee, they cannot question its authenticity or put an allegation to an employee that is suspected of ‘chucking a sickie’. Fortunately for managers who are in this position, this is not the case if there are genuine concerns and supporting evidence that an employee has misused their personal leave.
If an employee produces a medical certificate which the business thinks is suspicious, the first step should be to contact the doctor or medical centre to determine whether they did in fact issue the certificate. Whilst the doctor will not be able to provide information about a patient or their medical history, in most cases, they should be able to confirm whether the certificate is genuine.
In Ropafadzo Tokoda v Westpac Banking Corporation  FWA 1262, an employee provided a medical certificate without the doctor’s provider number on it. Suspecting that the certificate may be false, Westpac phoned the doctor’s surgery, which confirmed that they did not issue the certificate. Westpac put allegations to the employee that she had provided a false medical certificate, which she eventually admitted to. Westpac dismissed the employee, who went on to make an unfair dismissal application. Fair Work Australia found that the dismissal was fair on the basis that the employee had been dishonest, fraudulent and had breached Westpac’s code of conduct by producing a false medical certificate.
Similarly, if there are other grounds for believing that an employee has misused their sick leave and there is sufficient evidence, allegations should be put to the employee and they should be required to respond. In CFMEU v Anglo Coal (Dawson Services) Pty Ltd  FCAFC 157, an employee who threatened (and then actually took) sick leave after his annual leave request was denied, had his employment terminated following a procedurally fair investigation. Despite the Court noting that it might be unjust given that the employee had been legitimately sick, the employer had not terminated the employee because he took personal leave but because his conduct had irreparably broken the employment relationship.
Despite there being a temptation to rush out and confront every employee who has been suspected of chucking a sickie, which given the trend in Australia, there are probably many employees who fit into this category, it is important that businesses act cautiously when investigating the misuse of personal leave.
Under section 352 of the Fair Work Act, an employer must not dismiss an employee because they are temporarily absent from work because of illness or injury. Further, both state and federal discrimination legislation makes it unlawful for an employer to subject an employee to a detriment, including disciplinary action or termination of their employment on the grounds of their disability, which can include a temporary illness.
For this reason, it is vital that a business has sufficient evidence (rather than just mere suspicions) to establish that an employee has misused personal leave prior to taking any action against them, otherwise it could end up in protracted disability discrimination proceedings or facing claims that it unlawfully terminated an employee’s employment.
Given the difficulty in taking disciplinary action against an employee who is ill or injured, having a sensible personal leave policy and taking steps to understand the reasons as to why employees are ‘chucking sickies’ are the most important steps a business can take not only to reduce employee absenteeism but also to increase employee engagement.