Online medical certificates may not always justify absence

When an employee calls in sick, only to be seen interstate enjoying a major sporting event, alarm bells are bound to ring for their employer. While most employers are familiar with the occasional misuse of sick leave, many find themselves asking: what can we actually do when we’ve been given a medical certificate?

A recent decision from the Fair Work Commission (Commission) makes it clear that not all medical certificates are made equal, and employers do have the right to take disciplinary action when leave policies are abused.

In Fuller v Madison Branson Lawyers Pty Ltd [2025] FWC 784, the Commission upheld the dismissal of a solicitor who took sick leave to attend the AFL’s Gather Round in Adelaide. The decision offers timely and practical lessons on managing dishonest use of sick leave and navigating the receipt of online medical certificates.

Facts

The employee took personal leave on Friday 5 April and Monday 8 April 2024, citing illness. However, it later emerged through social media activity and travel records discovered by his employer that the employee had travelled to Adelaide to attend the AFL’s Gather Round during this period.

The employee had used sick leave on the Friday to travel to the game in Adelaide. On Monday morning, the employee sent an email to his managing partners claiming he was still feeling unwell, all the while he was travelling back to Melbourne with a group of friends.

During the investigation process, a HR consultant stumbled upon posts made to Instagram which clearly showed that Mr Fuller had attended the game that weekend, along with other social outings he had made in Adelaide.

When approached by his manager, the employee maintained that he had been unwell and subsequently provided a medical certificate in support of his absence. The certificate, however, had been obtained via an online medical service and was issued without any consultation or interaction with a healthcare practitioner; a detail that would later be significant.

Madison Branson Lawyers terminated the employee’s employment for serious misconduct, citing dishonesty and a fundamental breach of trust. The employee later lodged an unfair dismissal claim with the Commission, alleging that the termination was unjust.

Commission Findings

Deputy President Bell determined that the dismissal was fair and proportionate in the circumstances. He emphasised that the employee’s conduct represented a serious breach of trust that was particularly concerning given his position as a legal professional, where integrity and honesty are fundamental to the role.

The Commission gave particular attention to the medical certificate submitted by the employee. Notably, it had been issued by an online service without any consultation, no video call, telephone discussion, or direct interaction with a medical practitioner. As the certificate was based solely on the employee’s self-reported symptoms, its evidentiary value was significantly diminished. The Commission ultimately found the certificate to be “devoid of probative value” and concluded that it further undermined the employee’s credibility.

Does an employer have to accept an online medical certificate as evidence of illness?

Section 107 of the Fair Work Act 2009 (Cth) provides that, if requested by the employer, employees must provide “proof that would satisfy a reasonable person” that they are taking personal leave because they are not fit for work because of a personal illness, or personal injury. This case highlights that not all medical certificates hold the same level of credibility, particularly when they are issued without a proper medical assessment. A crucial factor in the Commission’s decision was the absence of consultation between the employee and a healthcare professional.

In addition to the medical certificate, the employee’s trustworthiness was already in question, after other evidence such as travel records and social media activity cast doubt on the legitimacy of his use of sick leave. In this case, the Commission concluded that the certificate was likely obtained in an attempt to justify an unauthorised absence. Rather than supporting his claims and being evidence that would satisfy a reasonable person that he was unfit for work, the certificate ultimately undermined his credibility and reinforced the employer’s suspicions of dishonesty.

What Employers Can Do When Faced with Questionable Sick Leave

While most employees use sick leave appropriately, cases like this demonstrate that misuse can occur, and employers do have options for addressing it. To effectively respond, employers should first clarify expectations in their leave policies. It’s important to specify what types of medical evidence are acceptable and consider requiring that certificates be issued following a consultation, whether in person, by phone, or via video. Additionally, employers should reserve the right to request further documentation if the circumstances warrant it.

Next, it is essential to assess the overall context of the situation. A medical certificate may be met with scrutiny where other evidence, such as travel records, timing, or behaviour, raises questions about its validity.

It is also crucial to engage in a fair process before taking any disciplinary action. Employers should provide the employee with an opportunity to explain their situation. Throughout this process, careful documentation is essential, including notes on questions asked, evidence collected, and the rationale for any disciplinary decisions. Taking any disciplinary action where sick leave, illness or injury is involved increases the risk of a general protections claim being made against the employer, so it is critical to ensure that any alleged breach of a policy or sick leave is investigated thoroughly.

If you have concerns or questions about an employee’s use of sick leave, online medical certificates or workplace policies, please contact NRA Legal on 1800 572 679 for a confidential conversation.