There are a number of service providers now available for employees to access a medical professional and to be issued with a medical certificate certifying them as unfit for work, often for a small fee.
Employers can often be sceptical of the veracity of such medical certificates, particularly where they may certify an employee unfit for work for one day.
In the recent decision of Fuller v Madison Branson Lawyers Pty Ltd [2025] FWC 784, the Fair Work Commission (FWC) has questioned the evidentiary value of online-sourced medical certificates, especially in circumstances where an employee may be misleading or deceiving the employer about being unfit for work.
The employee was employed as a solicitor in Melbourne and was summarily dismissed for lying to his employer about being unfit for work on two days in April 2024. These two days were either side of a weekend.
On the Friday, the employee emailed his employer stating that he “had a tough time sleeping last night and am not feeling up to coming into the office” and on the Monday he reported that he was “still in a bit of discomfort” and would not be able to attend work. The employee accessed his sick leave entitlements for both days.
For his absence on the Friday, the employee provided a statutory declaration in which he stated that he was sick and unable to see his regular doctor. The employee obtained an online-sourced medical certificate in support of his absence on the Monday.
However, the employer later found out that the employee had lied about being unwell and had instead attended the AFL ‘Gather Round’ weekend in Adelaide with his friends. The employer ultimately summarily dismissed the employee for serious misconduct.
The FWC heard the application for unfair dismissal and ultimately found that the employer had valid reasons to dismiss the employee – including that the employee:
The evidence demonstrated that the employee had initially intended to apply for annual leave but then utilised his sick leave for the holiday because he had anticipated that his annual leave would not be approved. In relation to the medical certificate, the FWC commented that the online-sourced certificate provided “no higher” authority than any information given by the employee as to his fitness for work. The employee could not recall if he had spoken to a doctor or if the certificate was obtained by filling out a form online.
Noting that the certificate was likely procured wholly online, with no evidence of direct consultation and with a doctor who the employee had not previously interacted with before, the FWC found that the evidentiary value of the medical certificate was diminished.
The FWC concluded that, owing to the deficiencies in the medical certificate, the employee could not conclusively demonstrate that he was unfit for work due to any illness.
What does the Fair Work Act 2009 (Cth) say about accessing sick leave?
Under the National Employment Standards, personal leave (otherwise known as ‘sick leave’) is an entitlement.
An employee has the right to take if they are unfit for work due to illness or injury.
As noted by the FWC in this matter, for an employee to be entitled to be absent on sick leave, this means that:
The employee is required to provide the employer with notice that the employee is taking personal/carer’s leave. This notice must be given ‘as soon as practicable’ and must advise the employer of the period, or expected period, of leave.
An employee must also provide the employer with evidence “that would satisfy a reasonable person”. This may include the procurement of a medical certificate, and the employer should assess whether the certificate provides a reasonable explanation for the employee’s absence.
What can employers do when they receive a medical certificate they are unsure about?
If an employer has concerns about the veracity of a medical certificate, they should make enquiries to confirm:
The employer may also request that the employee sign a statutory declaration in support of the medical certificate. A statutory declaration is a legally binding document which requires the employee to declare that the medical certificate is true and exposes the employee to legal consequences if it later found that the employee has lied.
If the employer finds the employee lied to or deceived the employer, the employer may consider disciplinary action.
This is a good reminder for employers to question the reliability of medical certificates, especially in circumstances where the certificate is from an online service.
To avoid uncertainty, employers should consider implementing or amending leave policies to provide that medical certificates from online services will not be accepted as satisfactory evidence of an absence on sick leave.
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, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.
