Published 20 July 2017
In a recent case, Bluzer v Monash University [2017] FWC 2536, the Fair Work Commission (FWC) found Monash University (Monash) was justified in dismissing an employee after expressing concerns over the validity of a medical certificate. Ms Bluzer attended a dental appointment whilst on annual leave in Bali from 11-15 February 2015. When Ms Bluzer returned to work, she provided a medical certificate to Monash covering her dental appointment and sought to convert her annual leave application to sick leave. Monash rejected this certificate as it did not say she was unfit for work, and required Ms Bluzer to provide a reissued certificate that met Monash standards.
Ms Bluzer returned to Bali from 5-12 February 2016 and received further treatment at the same dental clinic.
On 11 April 2016, Ms Bluzer provided an application for annual leave for 11 and 13 February 2015, and sick leave on 12 February 2015 with an attached medical certificate stating Ms Bluzer had treatment from 12-14 February 2015. A second certificate was alleged by Monash to have also been submitted which contained the phrase, “so was unable attended work”.
A second leave application was emailed to Monash on 26 April 2016, applying for personal leave on 12 and 13 February 2015 with a medical certificate containing the phrase “so was unable attended work”. After comparing this certificate with the previous two certificates, especially given the repetition of the grammatically incorrect phrase “so was unable attended work”, Monash became concerned about its authenticity.
Ms Bluzer admitted to modifying the certificate she sent via email, however claimed it was not intended to be sent to Monash. Rather, Ms Bluzer claimed that she intended to email the modified certificate to the Clinic requesting that the phrase “was unable to attend work” be included. She claimed she was under undue stress from her supervisor, and this was why she accidently sent the modified certificate to Monash.
Ms Bluzer claimed the phrase repeated on the other two certificates was either due to autocorrect or a mere coincidence, and such errors could be expected as the doctors were not native English speakers.
She claimed Monash was trying to get rid of her and was “setting her up”.
Decision
The FWC concluded that Ms Bluzer had altered the emailed medical certificate. Whilst Ms Bluzer genuinely believed that Monash was trying to get rid of her, the FWC acknowledged that Monash required an event to “trigger” an opportunity to do so.
The FWC believed “a possibly falsified medical certificate would be a sufficient concern to kick start a disciplinary process”. With respect to the repetition of the grammatically incorrect phrase “so was unable attended work”, the FWC provided that “the phrase in question is unusual and the chance of it randomly appearing in all three certificates would seem to be remote”.
Therefore, the FWC found there was no convincing explanation for what happened, and “the Commission ha[d] no option other than to accept the reasoning of the University for Ms Bluzer’s dismissal and to find that there was a valid reason for her dismissal”.
Therefore, the application for an unfair dismissal remedy was dismissed.
Take away points for employers
This case demonstrates that whilst personal/sick leave is a workplace right for employees, employers are entitled to ensure that it is not being misused and can require evidence be provided such as a medical certificate. If employers have suspicions regarding the evidence supplied in support of a leave application, then they are entitled to ask further questions and may start an investigation.
Where there is no convincing explanation or evidence to refute suspicions, employers may have a valid reason to dismiss an employee but must ensure that the procedural requirements of the Act are met.
This content is general in nature and provides a summary of the issues covered. It is not intended to be, nor should it be relied upon, as legal or professional advice for specific employment situations.
Olexo Workplace Law recommends that specialist legal advice should be sought about specific legal issues.
