FWC rejects unfair dismissal claim of employee off work for AFL games
A practising solicitor at a law firm in Melbourne has been fired after faking the reason for his sick leave to watch the Australian Football League (AFL) games.
Mitchell Fuller was fired at Madison Branson Lawyers in August 2024 for faking the reasons for his sick leave on April 5 and 8.
Fuller filed an unfair dismissal claim with the Fair Work Commission, which ultimately rejected his case.
"Mr Fuller's conduct and attitude were utterly incompatible with his ongoing employment as a solicitor at the firm, where integrity and honesty are paramount," said Deputy President Andrew Bell in his decision.
Fuller's dismissal from Madison Branson Lawyers stemmed from two separate occasions in April 2024, when he claimed sick leave despite being in Adelaide for the AFL.
The FWC heard that Fuller claimed to be too unwell to attend work on April 5, citing the lack of sleep.
"Unfortunately, I had a tough time sleeping last night and am not feeling up to coming into the office. I'll speak to a doctor and hope to follow up with a medical certificate later today," Fuller told his employer, as quoted by the FWC document.
However, it was later found that Fuller had already flown to Adelaide the night before to watch AFL games and join his friends at the beach during the weekend.
Fuller left Adelaide with his friends on the morning of April 8, sending another "Out of Office" email to his employer.
"Unfortunately, I'm still in a bit of discomfort today and don't think I can hack taking public transport quite yet," he said in the email. "I'll speak to a doctor and get a medical certificate when I can, hopefully will be OK tomorrow morning."
Fuller was unable to provide a medical certificate for his April 5 sick leave but was able to obtain a medical certificate from an online provider for his April 8 absence.
Fuller's false sick leave days were discovered in July after the firm sought the assistance of an HR consultant for another case that involved the practising solicitor.
The HR consultant carried out a review of Fuller's social media accounts and discovered images uploaded in May that were taken during his Adelaide trip in April.
His employer suspended Fuller, and in August sent him an email that outlined his dishonesty regarding his sick leave, as well as the photos on his social media accounts.
"We have become aware of information that is inconsistent with your assertion that you were unable to work due to 'illness,'" the email read, as quoted in the FWC ruling.
"We note that during the period 5 to 8 April (inclusive), contrary to your claims in your statutory declaration, medical certificate and emails on 5 and 8 April 2024, you travelled to Adelaide to attend, amongst other things, the AFL Gather Round (operational from 4 to 7 April 2024), Adelaide Oval, Elder Park, Glenelg beach and various licensed hospitality venues."
"Accordingly, it is unreasonable to conclude that you were unfit to work during this period."
By August 4, Fuller's employers terminated him with "immediate effect," citing his false statutory declaration and falsified leave requests.
The FWC upheld the termination of Fuller's employers, rejecting the practising solicitor's claim of unfair dismissal.
Bell did not accept that Fuller was unfit to work on both days of April that he claimed sick leave, even when presented with a medical certificate for the latter absence.
"Mr Fuller's provision of a medical certificate for his day off on 8 April 2024 does not conclusively demonstrate he was unfit for work that day because of any illness. Far from it," Bell said.
"The fact that Mr Fuller obtained the certificate for 8 April 2024 in a purely online forum, with no direct consultation by the practitioner who signed the medical certificate, diminishes the evidentiary value of that certificate."
The FWC also ruled out the possibility of reinstatement, as well as compensation for Fuller.
"As I do not consider Mr Fuller was unfairly dismissed, no compensation is payable," Bell said.
