What can employers do when a sick day is faked?

Have you ever had an employee call in sick, only to later discover they were attending a footy match or another activity? A recent decision by the Fair Work Commission (FWC) highlights that falsely claiming sick leave can constitute serious misconduct – which could be grounds for dismissal.

Let’s explore the case of Fuller v Madison Branson Lawyers Pty Ltd [2025] FWC 784, and what it means for small and medium businesses navigating employee leave.

The case of Mr. Fuller

Mr. Fuller, a solicitor from Melbourne, pre-booked flights and tickets to attend the AFL ‘Gather Round’ interstate. Rather than apply for leave, he flew to Adelaide and emailed his employer on Friday, claiming he was unwell. Over the weekend, he enjoyed the matches and social events, then emailed again on Monday – this time saying he couldn’t use public transport due to discomfort. He secured an online medical certificate and later submitted a false statutory declaration to cover his absence.

However, photos surfaced on social media showing Mr. Fuller attending the event. Madison Branson Lawyers investigated, and due to Mr. Fuller’s dishonesty and lack of transparency during the inquiry, he was dismissed for serious misconduct.

Fair Work Commission findings

Deputy President Andrew Bell upheld the dismissal, noting:

1. Alignment with the Small Business Fair Dismissal Code: The employer held a reasonable belief that Mr. Fuller’s conduct was serious misconduct.
2. Dishonesty: Falsified emails, an untruthful statutory declaration, and improper use of sick leave were valid grounds for dismissal under the Fair Work Act 2009 (Cth).
3. Lack of Evidence: Mr. Fuller couldn’t demonstrate he was unfit for work. Having planned the trip and his own admission that he could have worked contradicted his claims.
4. Questionable Medical Certificate: An online certificate without proper consultation carried minimal weight. Additionally, Mr. Fuller provided false testimony during the hearing.

The FWC concluded his behaviour was “utterly incompatible” with his role, especially in a profession that demands integrity and honesty.

A closer look at mental health and leave

While Mr. Fuller cited burnout and ADHD (previously undisclosed to his employer), the FWC found this insufficient for paid personal leave. The Fair Work Act allows mental health conditions as a valid reason for sick leave, but employees must be genuinely unfit for work – not simply in need of a break.

This case highlights the fine line between mental health needs and the legal threshold for personal leave, reinforcing the importance of honest and transparent communication.

Other real-world examples

To further illustrate the risks of dishonesty around sick leave, here are a few notable examples:

• The Concert Goer: An employee called in sick, claiming to have a severe migraine. However, their social media posts revealed they were attending a concert that evening. The employer discovered the posts and, after a brief investigation, the employee was dismissed for dishonesty.
• The Beach Vacation: A worker requested sick leave, citing a stomach flu. However, their colleagues saw photos of them enjoying a beach vacation on Instagram. The employer confronted the employee, who admitted to lying about their illness. The employee received a formal warning and was required to repay the sick leave taken.
• The Sports Fan: An avid sports fan called in sick to watch a major sporting event. They even posted live updates and photos from the stadium on their social media accounts. The employer, who was also a fan of the sport, saw the posts and initiated disciplinary action. The employee was suspended without pay for a week.
• The Family Gathering: An employee claimed to be unwell and instead attended a family gathering out of town. They posted pictures of the event on Facebook, which were seen by a coworker. The employer was informed, and the employee was called in for a meeting. After admitting to the false claim, the employee was given a final warning and reminded of the company’s leave policies.
• The Festival Attendee: A worker called in sick to attend a music festival. They shared numerous photos and videos on their social media accounts, which were later discovered by their employer. The employee was terminated for dishonesty and misuse of sick leave.

Key takeaways for employers

1. Honest Communication Matters: Employees can apply for personal leave based on their mental health, but it must be genuine and honestly communicated. Malingering and misleading an employer about leave can warrant summary dismissal.
2. Illness Must Impair Work Ability: Personal leave is not meant for planned recreation – it requires genuine unfitness for work due to illness.
3. Social Media Evidence: Public posts can substantiate or contradict employee claims about their fitness to work.
4. Understand the Small Business Code: Em Compliance with the Small Business Code offers significant protection against unfair dismissal claims for small business employers (who employ less than 15 workers). A reasonable belief based on reasonable grounds is key.
5. Investigate Fairly: Provide clear allegations and allow employees the chance to respond.
6. Challenge Suspicious Evidence: Questionable medical evidence (e.g. online medical certificates) or inconsistent claims can be challenged and may not hold up under scrutiny.

What should employers do now?

• Review Policies and Contracts: Clearly outline leave entitlements, evidence requirements, and conduct expectations in line with the National Employment Standards and relevant industrial instruments.
• Document Investigations: Ensure investigations are thorough, transparent, and well-documented.
• Use the Small Business Code: Where applicable, this can safeguard your business when managing misconduct.
• Monitor Staff Wellbeing: While compliance is essential, proactive support for mental health and burnout is equally important.

Maintaining a culture of honesty and accountability in your workplace isn’t just about compliance—it’s about building trust. For tailored HR support or guidance on managing employee leave and misconduct, partner with the HR professionals at Akyra. We’re here to help your business stay compliant, protect your team, and thrive. Contact us today for an obligation-free discussion.