In a recent decision the Fair Work Commission has upheld the dismissal of a carpenter who sought personal leave and gave a medical certificate, but could not explain errors in the certificate or an email by the medical practice that he was not a patient of the practice.
The Facts
The employee gave his employer a medical certificate stating that he was “unfit to do his usual work from 27/05/2025 to 31/05/2025 inclusive due to a medical condition”.
The employer noticed that the certificate looked identical to one the employee had given earlier in the year. The certificates showed the medical practice’s address incorrectly and an email address that was not the clinic’s address.
After contacting the medical practice the employer received an email from the practice stating that the employee is not a patient of the practice and the certificate was not issued by the practice.
The employer called the employee and told him that the certificates were forged and his employment would be terminated. The employer then messaged a copy of the medical practice’s email to the employee and sent a letter notifying termination.
A week prior the employer had raised concerns with the employee including about attending work on time and misusing fuel cards. The employee said that the employer had not been particularly accommodating in relation to mental health challenges he had been facing.
The employee applied for unfair dismissal.
Small Business Fair Dismissal Code
At the time of the dismissal the employer had 8 employees and was a ‘small business’.
The Small Business Fair Dismissal Code allows a small business employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal.
Serious misconduct includes fraud.
The Decision
The Commission dismissed the application and was satisfied that:
- The employer genuinely believed that the employee had provided forged medical certificates and had attempted to defraud the business.
- The belief was based on reasonable grounds including the email by the medical practice and the consistent errors in the medical certificates.
- The requirements of the Code were complied with.
- It was unnecessary to consider if the employer had other grounds upon which to terminate the employment, or if it had not properly taken into account the employee’s mental health challenges.
Implications
Employers can question the genuineness of a medical certificate and may even be able to take disciplinary action where there is a proper basis.
Employers should also exercise caution. The outcome in the case may have been different if the Small Business Fair Dismissal Code had not applied, and where the employer had not put the allegations to the employee and considered their response before making a decision to dismiss.
At WorkLegal our experienced team can answer your questions and put you on the right track. A range of fixed-price Initial Consultations will suit most people’s needs in quickly learning what their options are.