Doctor, Doctor: Full Bench rejects appeal from employee who altered medical certificate

Employers and human resources professionals may often be provided with medical certificates which they are not quite sure about, prompting them to look at the certificate a bit more closely.

In Bluzer v Monash University [2017] FWCFB 4032, the Full Bench of the Fair Work Commission (FWC) considered an appeal against a decision to dismiss an application for unfair dismissal. The matter involved an employee whose employment had been terminated because she submitted a falsified medical certificate in support of a sick leave application.

The Employee was employed by the University as an Executive Officer. In February 2015, the Employee underwent a dental procedure in Bali whilst on annual leave. When the Employee returned, she submitted an application for sick leave for the time taken for the procedure. This application was refused by the University because the medical certificate that was provided in support did not state that she was unable to work.

More than twelve months later in April 2016, some discrepancies were identified in the Employee’s leave record for that period and she was asked to provide a revised sick leave application. The Employee submitted a revised leave application for 12 February 2015 with a certificate dated 14 February 2015. The Employee then submitted another revised leave application for 12 and 13 February 2015 with a certificate dated 14 February 2015 (second February 2015 certificate) which now contained the unusual phrase “so was unable attended work”.

The Employee’s supervisor had concerns about the authenticity of the second February 2015 certificate – the words “so was unable attended work” had also appeared on a different medical certificate that the Employee had submitted two months earlier. In addition, the doctor’s signature on both 14 February 2015 medical certificates was in the exact same place. On further investigation, it was discovered that the second February 2015 certificate had been altered in February 2016 with an image added to the document.

The University terminated the Employee’s employment for serious misconduct for fabricating a medical certificate in support of a paid personal leave application. The Employee lodged an unfair dismissal application in which she provided various explanations about the certificate and submitted that it was a coincidence that the certificates contained the same words.

At first instance, the FWC held that the Employee did not provide a reasonable explanation about the certificates or for the inconsistencies in her evidence. It was held that there was a valid reason for dismissal and that the dismissal was not harsh, unjust or unreasonable.

On appeal, the Employee admitted that she altered the second February 2015 certificate but submitted that she did so:

  • In May 2015 because she intended to send it to the Bali medical clinic to show what amendment was required; and
  • To practice her PDF document editing skills.

After the University submitted evidence that the certificate was altered in February 2016, the Employee argued that she altered the medical certificate as a “professional training development exercise” and she never intended to submit that certificate.

The Full Bench held that there was no error in the Commissioner’s findings about the altered second February 2015 certificate or the Commissioner’s finding that there was a valid reason for the Employee’s dismissal. In particular, the Full Bench noted that the Employee changed her argument after being presented with evidence about the same grammatical error being included in both certificates.

The Full Bench dismissed the Employee’s other grounds of appeal and rejected the application for appeal.

Lessons for employers

This case contains key lessons for employers:

  • Where there are doubts about the veracity of a medical certificate, make enquiries seeking confirmation. In this matter the University requested evidence of the Employee’s absence on sick leave and closely scrutinised the medical certificate when doubts arose about its veracity.  In our previous blog “It’s going viral:  e-medical certificates” we provided some tips for employers regarding employees accessing sick leave and when to request and verify evidence of a period of absence on sick leave.

  • Ensure that leave records are up to date and conduct regular reviews of leave balances. In this matter, the error in leave records was not discovered until over twelve months after the Employee had gone on leave. 

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

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