How social media evidence, false sick leave claims led to a justified dismissal
The Fair Work Commission (FWC) recently dealt with a case involving a solicitor who was summarily dismissed after claiming sick leave to attend an interstate Australian Football League (AFL) event. The worker argued his dismissal was unfair, while the employer, a small law firm, contended the dismissal was justified due to dishonesty.
The solicitor claimed his employer failed to provide procedural fairness, arguing the allegations were vague and the evidence contradictory. He maintained he was entitled to take leave due to underlying health issues, specifically Attention Deficit Hyperactivity Disorder (ADHD) and medication supply issues.
The matter raised questions about the boundary between an employee's right to personal leave and an employer's expectation of honesty.
The solicitor worked at a Melbourne commercial law firm from January 2023 until his dismissal in August 2024. The evidence showed he had booked a flight to Adelaide on 1 April 2024 (Easter Monday) for the following Thursday evening, and purchased AFL game tickets the next day.
After flying to Adelaide on Thursday evening, the solicitor emailed his employer Friday morning stating: "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."
The FWC found this email "falsely conveyed that the reason [the solicitor] was unable to come into the office was because he had a 'tough time sleeping last night'." The Commissioner noted, "To state the obvious, the real reason [the solicitor] could not come into the office was because he was in Adelaide, pursuant to a trip he planned and partly paid for four days earlier."
The solicitor spent the weekend attending AFL games, visiting beaches, and socialising. Although originally planning to return Sunday night, he stayed in Adelaide and began driving back Monday morning. He sent another email claiming: "Unfortunately I'm still in a bit of discomfort today and don't think I can hack taking public transport quite yet."
The FWC found this email "falsely conveyed that it was the alleged 'discomfort' that was the reason [the solicitor] was unable to attend work that day" when he was actually "in a car with friends presently located approximately 700km away."
For the Monday absence, the solicitor obtained an online medical certificate without seeing a doctor. For Friday, he later submitted a statutory declaration stating he was "unwell and unable to work" and that his GP clinic "was unable to offer me an appointment."
The Commissioner stated: "I am not satisfied he was sick or unfit to work. [The solicitor] led no evidence of illness beyond his own word... it suffices to say that [the solicitor's] word on the matter is clearly insufficient."
Three months later, performance issues arose when the solicitor allegedly continued working on a file the principal solicitor had locked due to unpaid client funds. During the subsequent disciplinary process, a human resources consultant discovered social media photographs showing the solicitor at Adelaide Oval during the weekend in question.
When confronted, the solicitor responded: "I deny having engaged in any conduct harmful to the reputation of the firm. I have not been able to identify any evidence of reputational damage to the firm in the materials you have provided."
The FWC described this as "a glib deflection" of a serious allegation that "had the potential to call into question [the solicitor's] fitness to practise as a lawyer."
The solicitor's credibility was further damaged when he gave evidence about consulting his doctor on 4 April 2024. Phone records showed only a one-minute incoming call from the clinic regarding an unpaid bill. The Commissioner described this testimony as "an untrue reconstruction" and "inexcusable" for a practising solicitor.
As the law firm employed fewer than fifteen people, it qualified as a "small business employer" under section 388(2) of the Fair Work Act 2009. This allowed the firm to rely on the Small Business Fair Dismissal Code as a defence.
The FWC examined whether the dismissal was consistent with the Code, which permits summary dismissal when "the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal."
The Commissioner concluded: "I have no hesitation in concluding, for the purposes of the Code, that [the employer] held a belief that [the solicitor's] conduct was sufficiently serious to justify immediate dismissal... They each believed that [the solicitor] had lied to the firm about being sick and had also made a false statutory declaration in doing so."
The Commissioner added: "I also have no hesitation in concluding, for the purposes of the Code, that [the employer's] belief was based on reasonable grounds," noting the employer had "highly credible evidence" and gave the solicitor multiple opportunities to respond.
Even without applying the Code, the FWC found the dismissal was not unfair: "[The solicitor's] conduct and attitude was utterly incompatible with his ongoing employment as a solicitor at the firm, where integrity and honesty are paramount."
The solicitor's application for an unfair dismissal remedy was dismissed.
