A falsified medical certificate – does this warrant dismissal?

Facts

This case concerned an unfair dismissal claim.

After the employee’s dismissal, when looking at the former employee’s work emails, the employer realised the employee had a job interview for a date when she had produced a medical certificate to use paid personal leave for her absence that day. Through further investigation, ‘the medical certificate was found to have been falsified’ by the former employee. 

At first instance, it was decided that the former employee was unfairly dismissed notwithstanding the concession by the employee that she did in fact falsify the medical certificate. The employer appealed that decision. In the appeal, the Full Bench of the Fair Work Commission ultimately refused the employer permission to appeal but made some important observations in relation to falsified medical certificates. 

In its decision, the Full Bench explained that the past case law relied upon by the employer did ‘not establish any general principle of universal application that the falsification of a medical certificate will always constitute a valid reason for dismissal irrespective of the circumstances.’

The circumstances of this case, considered by the Commissioner at first instance and reiterated by the Full Bench on appeal, include:

• the manager wanting a medical certificate for a 1½ hour period so that the employee could go to a job interview, did not correspond with the Company’s policy;
• the employee was previously warned to not take time off in lieu (TOIL) in circumstances where the employee could not attend work;
• the employee did not receive ‘financial gain’ as the employee, if she was allowed to have done so, could have used accrued TOIL for the absence; and
• the employee had previously experienced ‘victimisation and bullying’ so was concerned of her employment being terminated if she did not give a medical certificate for this absence. 

The Commissioner in the first instance decision stated ‘the falsification of the medical certificate cannot be condoned’ and the employee’s ‘desperation to save her job led to an act of foolishness’. Significantly, the Full Bench acknowledged that the Commissioner (at first instance) had decreased the compensation award for the unfair dismissal by 30% on the basis of such conduct.  

Key take-aways

This case shows that whilst the FWC ‘did not condone’ the falsification of a medical certificate, each case is assessed on its own circumstances and dismissal is not always an appropriate consequence for such conduct.

This case is also a reminder for employers, when requesting medical certificates, to keep in mind the Company’s own policies.

The Trustee for WKC Trust t/a Curious Grace v Emily O’Brien [2019] FWCFB 7796 (12 December 2019)

National Workplace Lawyers

Note – this article is for information purposes only and does not purport to be comprehensive or to render legal advice.