Wipe out decision not sick

Written on the 9 September 2009

Employees are thinking twice before taking a ‘sickie’ following a recent Australian Industrial Relations Commission (AIRC) ruling.

The decision confirms that an employer does not have to treat a medical certificate as binding. The case, involving former professional surfer Shane Bevan, has wiped out the idea of the doctor’s signature as binding.

Bevan injured his back while working for Oceania Aviation Services, a company contracted to provide baggage handling services to Virgin Blue at Coolangatta airport.

While on leave, his grandfather died and Bevan travelled to Sydney to be with relatives before returning home two days later. In memory of his grandfather, he competed in the Coolum Classic — of which he was the reigning champion — the next day. When his employer got wind of the contest, he was sacked.

McCullough Robertson special counsel, Cameron Dean, says if an employer can establish the claim of illness or injury as fraudulent they can take disciplinary action against the employee.

“An employer is not required to accept a medical certificate as reflecting the truth. If they have suspicions they have the right to make further enquiries,” says Dean.

“Mere suspicion is not sufficient though as evidence must be gathered to prove the claim is false or, in cases where the employment is terminated, employers risk an unfair dismissal claim.”

Dean says modern technology now makes it easier for employers to catch out dishonest employees, as they have new tools to challenge their claims.

“Whether an employer goes to these sorts of lengths may depend upon the amount of sick leave or the pressure it puts on the remaining workforce,” he says.

“Employers have many more ways to gather evidence now such as Facebook, Twitter and text messages, so those taking a ‘sickie’ can be caught out when boasting to their friends or coworkers about what they are doing.

“If an employee has a company mobile phone, invoice records can also be examined to see where calls were made from on the day the employee was supposed to be sick at home.

“Seeing a staff member on television in the crowd at the Gabba cricket ground is no longer the only way to prove an employee is being dishonest. Employers are now becoming smarter and employees need to be aware of the serious ramifications they could face if caught out,” he says.

A report by the University of Western Australia reveals that around 270,000 Australians are absent from work on any given day.

Research from Hallis, a human resource industry consultancy, estimated that the loss of productivity to the Australian economy due to absenteeism was estimated at $18 billion.


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