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A recent decision of Fair Work Australia has reinforced the seriousness of misusing personal leave. The employee was dismissed after she took personal (sick) leave to travel interstate. The dismissal was upheld, despite the fact that the validity of the employee’s medical certificate was not called into question.

Facts

The employee booked flights to attend her sister’s wedding interstate but shortly before the date, the wedding was cancelled. The employee did not take steps to cancel her flights, because she understood the tickets were non-refundable.

On the eve of her intended departure, the employee consulted a doctor and obtained a medical certificate for the days that she planned to be interstate. The medical certificate did not provide any explanation as to why the employee was unfit for work, but the employee gave evidence that she had consulted her doctor about a swollen/infected leg and her diabetes.

The employee called in sick to work, arranged for the medical certificate to be delivered to her employer and continued with her personal travel plans.

Critically for the employer, the employee had printed her airline tickets at a communal work printer, where her employer had seen them. The employer noted that the dates for the flights and the dates for the medical certificate coincided and was suspicious that the employee had planned in advance to take sick leave for her trip instead of asking for and taking annual leave.

The employer reviewed the employee’s emails and did not find any emails relating to her trip. However, when the employer reviewed the employee’s hard drive, it uncovered a number of permanently deleted emails about the trip. These included one email between the employee and her son, in which she reprimanded her son for sending trip-related emails to her work email address. Other emails between the employee and her son that were not trip-related had not been deleted from her inbox by the employee.

When the employee returned to work, the employer met with the employee to discuss what had transpired. The employee failed to give a plausible explanation and was summarily dismissed on the basis that she had behaved deceitfully and could no longer be trusted.

Proceedings

Because the employer was a small business employer, the Small Business Fair Dismissal Code applied. The Code permits summary dismissal ‘when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal’.

The employee complained that her conduct was not sufficiently serious to justify summary dismissal. She argued that she only decided after her doctor’s appointment to continue with her travel plans, as she could recuperate interstate and be tended to by her family. She also suggested that she had simply forgotten to apply for annual leave and thought that if she had applied, it would have been approved as her employer was reasonable about such matters.

The employer contended that the employee engaged in wilful or deliberate behaviour that was inconsistent with the continuation of the contract of employment.

Critically, the legitimacy of the medical certificate was not called into question and the employer gave evidence that had the employee remained at home during her leave period, it would not have been concerned. Rather, the employer was concerned that the employee’s story ‘just didn’t stack up’, given that:

  1. the employee did not seek paid or unpaid annual leave from the employer for the purpose of travelling interstate, either before or after she purchased her airline tickets; and
  2. the employee permanently deleted emails between her and her son relating to the trip, and admonished him for emailing her at work about the trip, while other emails between the employee and her son remained undeleted.

Finding in favour of the employer, Fair Work Australia concluded that it was fair for the employer to dismiss the employee, in circumstances where it believed on ‘reasonable grounds – going fundamentally to good faith, fidelity and trust – that the… [employee’s] conduct was sufficiently serious to justify immediate dismissal’.

Key lessons for employers

This case is a reminder that misuse of personal leave can be serious enough to justify summary dismissal, where it can be demonstrated that through a course of wilful and deliberate deceitful conduct it affects an employer’s ability to maintain trust and confidence in the employment relationship.

Whilst relating to the operation of the Small Business Dismissal Code, the case still illustrates the general rule that employers should remember that ‘suspicion’ and ‘evidence’ are entirely different things.

Should you believe an employee has or intends to misuse personal leave, you should:

  1. where possible, request a medical certificate from the employee under the terms of the relevant agreement or award or NES;
  2. conduct a proper investigation into the circumstances for evidence that contradicts the basis of the certificate;
  3. determine whether the employee’s conduct constitutes serious misconduct, having regard to all of the circumstances;
  4. if the employee has engaged in serious misconduct and you are considering termination, have a meeting with the employee and a support person to tell the employee why you are considering termination and to give the employee an opportunity to respond before making any decision; and
  5. if in doubt, seek advice.

For more information, please contact:

Brisbane
John-Anthony Hodgens t +61 7 3231 1568 jhodgens@qld.gadens.com.au
Sydney
Mark Sant t +61 2 9931 4744 msant@nsw.gadens.com.au
Stephanie Nicol t +61 2 9931 4855 snicol@nsw.gadens.com.au
Adelaide
Nicholas Linke t +61 8 8233 0628 nlinke@sa.gadens.com.au

This report does not comprise legal advice and neither Gadens Lawyers nor the authors accept any responsibility for it.