Forged medical certificates: discipline or dismissal?

Published November 18, 2020 (last updated January 25, 2022) servian

Sick leave has quickly become one of the biggest challenges facing businesses in 2020. Whether it’s directed for mandatory quarantine, the casual Aussie ‘sickie’ or caring for family members, the Fair Work Act states employers can request staff to provide evidence to support their leave.

In most cases, this evidence takes the form of a medical certificate. However, with the current working environment in such a fragile state, issues like forged certificates can be all the more difficult to deal with, especially for small businesses.

Jessica Laina, Client Relationship Team Leader in the Face2Face team at Employsure, Australia’s largest workplace relations advisor, has had several businesses referred to her team in recent months, seeking assistance on how to handle this exact situation.

“When it comes to the difference between dismissal or disciplinary action, it depends on the employee themselves and their history at the company”, said Ms Laina.

“To maximise the chances of an employer successfully defending an unfair dismissal claim, terminating an employee’s employment for serious misconduct is best supported by evidence of the conduct having actually occurred.”

The ‘pandemic leave’ clause has allowed workers to legally take up to two weeks of unpaid leave (paid in some Awards nationally) each time they are required by the government, their employer or a doctor to self-isolate for the mandatory 14-day period due to being, or suspected of being, exposed to COVID-19, or displaying COVID-19 symptoms. While workers in Victoria, Tasmania and New South Wales can access the Federal Government’s paid pandemic lave program, which pays people without sick leave $1500 when they are forced to isolate.

There are several ways medical certificates are handed out to patients and Ms Laina has advised employers to make sure these documents are accurate.

“What’s important to note, especially for employers, is if they do have employees who have had issues or seemed suspicious in the past, it’s always best to contact the doctor and confirm the legitimacy of the certificate.

“In an instance an employer is provided a forged certificate, there are a number of options to consider, but as mentioned it should be handled on a case-by-case basis, depending on the circumstances and past history of the employee.

“The recommendation is to arrange a meeting with the employee to understand the situation better and take disciplinary action if needed. If there’s enough evidence, and there isn’t cause for an unfair dismissal claim, then you can look at termination,” concluded Ms Laina.

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