When does faking a sick day to watch a footy game cross the line from a questionable choice to grounds for dismissal? A recent Fair Work Commission (FWC) decision highlights that a fabricated sick leave claim can justify an employee’s summary dismissal. The case of Fuller v Madison Branson Lawyers Pty Ltd [2025] FWC 784 provides valuable insights for employers on managing dishonest conduct by employees and the action that employers can take in response to malingering.
Background
Mr. Fuller, a Melbourne based solicitor, planned an interstate trip for the AFL ‘Gather Round’. Despite booking flights and AFL tickets earlier in the week, he didn’t request leave. Instead, after flying to Adelaide, he emailed work on Friday claiming he was unwell and unable to come in. He then spent the weekend socialising and attending games. While driving home from Adelaide on Monday, he again emailed his employer claiming “discomfort” prevented him from using public transport. He obtained an online medical certificate for Monday and later provided a (false) statutory declaration to support his application for personal leave on Friday. His employer, Madison Branson Lawyers (a small business), later discovered social media photos of his Adelaide trip. Following an investigation where Mr Fuller was evasive, he was dismissed for serious misconduct due to dishonesty.
FWC Decision
Deputy President Andrew Bell upheld the dismissal as fair for the following reasons:
- the dismissal was consistent with the Small Business Fair Dismissal Code. The employer reasonably believed Mr. Fuller’s dishonesty was serious misconduct justifying immediate dismissal;
- dishonesty (false emails and statutory declaration, wrongly claiming sick leave) constituted valid reasons for dismissal under s 387 of the Fair Work Act 2009 (Cth);
- Mr Fuller failed to prove he was unfit for work due to illness on the relevant days. Planning the trip and admitting he could physically attend work contradicted his claim. Feeling stressed or needing a break doesn’t satisfy the criteria (as the commissioner said, there are not many people whose outlook wouldn’t improve by taking a paid day off to spend with friends);
- an online medical certificate obtained without consultation held diminished weight. The FWC also found Mr. Fuller gave false evidence during the hearing, calling it “inexcusable” for a solicitor.
Deputy President Bell noted that Mr. Fuller’s conduct and attitude was “utterly incompatible with his ongoing employment as a solicitor at the firm, where integrity and honesty are paramount”. Not only did Mr. Fuller make false representations to his employer, but he was also found to have given false evidence to the FWC.
While the decision has been welcomed by employers, it has also prompted an important discussion about the interplay between neurodiversity, mental health, and leave. While mental health conditions are recognised as a potential ‘illness’ under the Act allowing for personal leave, the employee must be unfit for work because of that illness. Mr. Fuller, who has ADHD (unknown to the employer), made submissions that burnout necessitated a ‘mental health day’. However, the FWC found that feeling stressed or needing time off didn’t automatically meet the Act’s requirements for paid leave, distinguishing this from being incapacitated by illness. The decision underscores that despite the obligations of employers to regarding psychosocial risks, employees must satisfy leave criteria and remain honest.
Key takeaways for employers
- Employees can apply for personal leave on the basis of their mental health, but it must be genuine and honestly communicated. Malingering and deliberately misleading an employer about leave may warrant an employee’s summary dismissal.
- Paid personal leave requires genuine unfitness for work due to illness. It’s not for pre-planned leisure.
- Social media can provide a valid source of evidence that an employee was fit for work.
- Compliance with the Small Business Code provides significant protection against unfair dismissal claims for small business employers. A reasonable belief based on reasonable grounds is key.
- Employers must conduct reasonable investigations and give employees a reasonable opportunity to respond.
- Questionable medical evidence can be challenged and dishonest claims may constitute fraud.
What should employers do now?
- Ensure policies and contracts are clear on entitlements to leave, leave notice and evidence requirements, and expected standards of honesty, and consistent with National Employment Standards/relevant industrial instruments.
- Conduct fair, documented investigations into suspected misconduct, putting clear allegations to the employee.
- Small businesses should understand and utilise the Small Business Fair Dismissal Code where applicable.
- Take steps to monitor and prevent burnout and psychosocial hazards of staff.
How we can help
Managing employee conduct, leave entitlements, and honesty requires careful navigation. The Moores Workplace Relations team provides pragmatic, commercially focused advice to help employers manage these situations effectively.
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Please contact us if you would like further information on how we can assist.
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Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to your organisation.