Originally article on 1 May 2025. Updated on 3 July 2025.
Authors: Frank Brun & Bryce Roache.
Calling in for a sick day and taking a day off work has become a common Australian trait in the employee culture.
A news.com.au article discussed that 7 out of 10 Aussie admit to faking sick days when they are not actually sick. It is worth noting that mental health recovery does fall under the justification of sick leave.
However, when employees take a day off work for being sick and instead go to an AFL game, meat pie and a cold beer in hand, they push the limits of what sick leave was intended for.
This scenario played out in Fuller v Madison Branson Lawyers Pty Ltd [2025], a recent Fair Work Commission case, which you can read here.
Interestingly, the employee in Fuller was a lawyer, and the Commission noted that lawyers have a professional and ethical duty to tell the truth. It will remain to be seen if this case provides the necessary guidance for employees across other industries. Certainly that higher standard held in Fuller could be argued in favour of employees, but perhaps only to a limited extent.
The facts in Fuller give light to an employee’s obligation to be truthful about their reason for sick leave, and also perhaps the extent to which they are actually unwell. Mr Fuller told his employer that he was unwell and submitted an online medical certificate based solely on self-reported symptoms. There was no in-person examination by a doctor, not even a video consultation by a medical professional. Mr Fuller just received a typed-up note from a doctor after a telehealth appointment based on his own personal assessment as a patient.
Strangely, Mr Fuller then gratuitously posted evidence of himself online at an AFL game. His employer found out about this event some months later and ultimately dismissed him on the basis of lying about the nature of the sick leave. Mr Fuller challenged the dismissal at the Fair Work Commission, claiming his day off was for mental health reasons.
Mental health is a legitimate reason to take sick leave, but the Commission made it quite clear that it’s not a blank cheque to just stay home or engage in personal leisure. A mental health day needs to be genuinely for mental health purposes.
The basis of the dismissal was due to the deception, the nature of the deception and in the context of the employee, being the legal profession. Therefore, the deception was taken more seriously because the lack of honesty undermines the position of a lawyer, but also their firm and their profession.
The Commission hinted that lawyers are held to a higher standard because of their ethical obligations. Applying the reasoning to other employees across industries the most important message from this case is:
Deliberately misleading your employer about your health is a serious matter, regardless of your job title, position, seniority.
It may be more serious for certain positions and the onus may rest with greater proportionality on more senior roles or those with leaderships responsibilities. Nonetheless, the underlying message for all employees is that they should use sick leave if they are not well, and they should use the day to rest so that they can come back to work and continue working.
The commonsense approach should be that both employees and employers should engage with each other in an honest and transparent manner. This builds trust and improves productivity. An employee who is feeling mental strain, personal grievance or is unwell, should have a support system available in their work place and the employer should be proactive in their approach to provide suitable mental health support to both prevent major impacts on employee productivity and improve the resilience and overall capacity of their employees.
Specific insights from this case:
- Mental health issues are serious and “Mental Health Days” are part of sick leave, and employers should have a system in place for this.
- Whilst online medical certificates are legally valid, a proper system to protect against abuse is something employers should consider.
- Social media is a powerful tool for Employers and this should be used to ensure both honesty and transparence in employment relationships.
- Employers should look at reviewing their Code of Conduct, Employee Welfare Policy, and other related Human Resource Policies to ensure they have a transparent system that promotes employee wellness, job satisfaction and productivity.
Whilst it might be Australian work culture to “chuck a sickie”, there are serious reputation risk, operational and strategic reasons why employees should not abuse the sick leave.
Contact office@fairbane.com.au for a free examination of your Human Resource policies and we can demonstrate the cost savings and productivity increases that clever and sensible advice can bring you.