Employers often face difficulties determining whether an employee who ‘calls in sick’ has a genuine reason for their absence, or whether sick leave entitlements are being misused.
Can taking paid sick leave for non-health related purposes be grounds for a dismissal? Yes, although the approach of the courts and the Fair Work Commission to dismissals for abusing sick leave entitlements varies depending on the circumstances.
In one case, an employee took sick leave instead of seeking annual leave for a holiday and her employer conducted investigations revealing that she had deleted emails about the holiday from her work computer. Despite her having a medical certificate, she was found to have engaged in conduct sufficiently serious to justify dismissal.
In another, an employer was ordered to reinstate an employee who was dismissed for taking sick leave to be part of the television show ‘Beauty and the Geek’, and provided a medical certificate. The decision-maker in that case observed that employers should not dismiss medical certificates in the face of contradicting facts, especially when there is no evidence of dishonesty from the doctor.
For employees, it is important to understand that medical certificates do not provide immunity for dishonest conduct.
And what about employers who suspect their employees are ‘chucking sickies’?
Before considering dismissal, employers should have reasonable cause to believe the employee is abusing their sick leave entitlements, and sufficient evidence to prove their suspicions.
Under the national employment standard in the Fair Work Act and most Awards and Enterprise Agreements, employers are entitled to reasonably request evidence to support an employee’s absence on personal leave. Employers who remain suspicious might consider investigating social media or the employee’s work email account, but medical certificates should not be disregarded if conflicting evidence is found. It is also important to consider the employee’s past record and any real consequences of the unauthorised day off.
As there are always risks associated with taking disciplinary action for a temporary absence from work due to illness or injury, employers should proceed with caution and seek advice.
- Fay Calderone is a partner at DibbsBarker. This article contains general commentary only. It is not legal advice and must not be relied upon as such. Readers should obtain specific advice relating to their particular circumstances.
