A Fair Work Commission (FWC) decision from earlier in the year serves as a reminder for employers, that acting too quickly on suspicions of sick leave abuse can be costly.
In the case, a senior supervisor was dismissed after taking six weeks of sick leave supported by medical certificates. The employer admitted it doubted the legitimacy of the illness — but instead of seeking further clarification, it terminated the employee without notice.
The FWC found the dismissal unfair, ordering the employer to pay nearly $30,000 in compensation.
So, what should you do if you suspect an employee isn’t being truthful about their illness?
1. Seek clarity before taking action
If you believe an employee may be misusing sick leave, start with a direct, respectful conversation. Avoid jumping to conclusions — instead, ask for additional information or clarification.
For example, you might say:
“We need more detail to understand your current health situation. Could you please ask your doctor to provide more information, or would you be comfortable attending an independent medical assessment?”
Being upfront about your concerns can prevent misunderstandings and demonstrate procedural fairness.
2. Know your rights — and limits
Under the Fair Work Act, employees must provide evidence that would satisfy a “reasonable person” that they’re unfit for work. In most cases, a valid medical certificate will meet this test.
However, if you have legitimate reasons to doubt the certificate’s accuracy — for example, if sick leave is prolonged, patterns emerge (like repeated Monday absences), or communication is poor — you can request further information.
This could include:
- asking permission to speak with the employee’s doctor.
- providing a letter for the doctor outlining specific questions.
- referring the employee to an independent medical expert (IME).
If the employee refuses to cooperate, you may begin a disciplinary process — but only after demonstrating that you’ve made fair and reasonable attempts to clarify the situation.
3. Avoid acting too quickly
Dismissal should be a last resort, not a first reaction. The FWC was critical in this case of how quickly the employer moved from suspicion to termination — just six weeks.
Even if your concerns are valid, cutting off pay or dismissing an employee prematurely can expose your business to claims of unfair dismissal. Take time to follow due process, gather evidence, and document your decision-making.
4. Understand the legal timeframe
Employers are generally prohibited from dismissing someone due to a temporary illness or injury if the absence is less than three months (consecutively or cumulatively within a year).
After this period, termination may be possible — but only if the employee cannot perform the inherent requirements of their role. Be mindful that discrimination laws also apply in these cases.
5. Address the root cause
Frequent or unexplained absences can sometimes signal deeper issues such as disengagement, burnout, or workplace conflict. Before taking disciplinary action, consider having an open and empathetic conversation.
Understanding the “why” behind the absences can often lead to a more sustainable solution than dismissal.
Key takeaway
Acting on suspicion alone can land employers in hot water. If you believe an employee is misusing sick leave:
- communicate clearly.
- request proper evidence.
- follow a fair and consistent process.
- seek legal or HR advice before making termination decisions.
Protecting your business starts with getting the process and the conversation right.