Dealing with Employees who take illegitimate 'sickies'| Fairwork Online

Dealing with Employees who take illegitimate 'sickies'

Unlawful termination laws prevent an employer from terminating or dismissing an employee for being absent from work due to sickness.

However, an employer can always challenge an employee if the employee deliberately misleads the employer about the reasons for their absence.

For example, if an employee who has called in sick then posts on Facebook that they are out and about doing things that a 'sick' person would not normally do (i.e shopping), you have proof that the employee is not taking leave for the medical reasons they claim to be suffering from. 
If an employee later provides you with a medical certificate to substantiate their absence, you will need compelling evidence to challenge it - however, it is possible.

In Anderson v Crown Melbourne Ltd [2008] FMCA 152 (3 March 2008), an employee had provided a medical certificate in support of his request for paid sick leave.  However, his employer was made aware by the employee's co-workers that he had in fact attended a football game on the date of the medical certificate.  The employer dismissed him for misconduct, and the employee filed an unlawful termination claim.

However, the employee's unlawful termination claim was dismissed by the court because it was demonstrated in evidence that he had in fact not been ill.  His doctor had not conducted any proper diagnosis of the employee, and the Federal Magistrate was prepared to question the employee's medical certificate.  In this situation, the employer was justified in querying the truth of the medical certificate.

But what can you do if you do not have proof that your employee's "sickie" is illegitimate?

Under the Fair Work Act, an employer can always request that an employee provide evidence that would satisfy a reasonable person that the employee was in fact ill, and this can include a medical certificate.

If the employee provides you with a medical certificate, generally, you must accept it as evidence of their illness.  If you doubt the accuracy of the certificate, all you can do is seek clarification from the doctor who provided the certificate.  Once you have received confirmation from the doctor, you cannot take the issue further.

However, if the employee cannot provide you with a medical certificate for their absence, you are well within your rights to deny them paid sick leave.

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