In 2018, job website Adzuna found that 2.3 million or 18.5% of Australian employees had taken illegitimate sick days over the year 2017 alone. The Sickie Survey emphasises that the false sick leaves added up to $823 million, which cost our economy. Moreover, a recent LinkedIn poll (2024) revealed that 31% of the 1185 respondents admitted to ‘pulling a sickie’ whilst feeling healthy, studies suggest that it might be time for better communication between employers and employees.

Fair Work Act

In Australia, the Fair Work Act 2009 serves as a safety guard for workers regarding unfair dismissals and other employment issues. According to the Fair Work Ombudsman, employees are entitled to a total of 10 days of paid personal/carer’s leave for each year of employment. Under the Fair Work Act 2009, employees can get paid sick leave if they are not fit for work because of a personal illness, or personal injury, affecting the employee, or if they need to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support. In general, employees can be required to provide a medical certificate as evidence to permit the leave.

Relevant Case

Mr Mitchell Fuller, a lawyer at Madison Branson Lawyers was dismissed from his workplace due to falsely stating his reason for not attending work. The young Melbourne Lawyer had taken two days of sick leave; April 5 th and April 8 th , 2024, and proceeded to file for an unfair dismissal case against his employers with the Fair Work Commission and was rejected by Deputy President Andrew Bell. It was concluded that Mr Fuller lied to his employers. To carry out their defence, the Law Firm relied on the Small Business Fair Dismissal Code, which allows dismissal immediately if the employer believes the conduct was severe enough.

Deputy President Bell noted that the grounds were reasonable as Mr Fuller acted dishonestly and breached contractual obligations. The FWC also concluded that the dismissal is fair, as employees may be entitled to take personal leave when genuinely ill or injured; however, fabricating illness constitutes serious misconduct.

Key Takeaway

The case serves as an example of the consequences fake sick leave may lead to, which is why employees and employers must assess and exercise their rights properly. As an employer, you can ask an employee for a medical certificate or statutory declaration at your discretion. Employers can also contact medical practitioners to confirm the certificate’s validity but may not be told about the medical issue. It should be noted that employees have a right to 10 days of paid leave if the reason is valid and disclosed honestly to the employer.

For all employment law matters, please contact Pannu Lawyers on 02 9920 1787.