Medical certificates from employees lead to their dismissal

Two recent Fair Work Australia (FWA) decisions have considered the veracity of medical certificates provided by employees to their employers.

In Tokoda v Westpac Banking Corporation T/A Westpac [2012] FWA 1262, the employee, Ms Tokoda, was dismissed by Westpac for providing a fraudulent medical certificate.

After a period of sick leave, Ms Tokoda provided a medical certificate for her absence.  The certificate lacked details such as an official seal or a medical provider number.  The employer sought confirmation from the doctor whose name appeared on the certificate whether Ms Tokoda had attended the clinic on the date specified in the certificate.  The doctor advised that she had not attended the clinic for some years.

FWA considered that the production of a false certificate was sufficient reason for dismissal.  Because Ms Tokoda was in a position that required “the highest standards of honesty and integrity”, FWA found that the relationship between the employer and employee was so damaged that the employer “had no option but to terminate” Ms Tokoda.

In the second case, Cyprys v Above The Line Pty Ltd T/A Melbourne Office Supplies [2012] FWA 1247, the employee, Mr Cyprys, was dismissed whilst he was on unpaid leave due to a medical condition.

The unpaid leave was for a non work-related illness which required surgery.  Due to the nature of the illness, the employer sought a report from Mr Cyprys’ doctor about his capacity to return to work.  A short letter provided by the doctor then stated that Mr Cyprys could attend to “light duties”.

The employer requested that Mr Cyprys provide another letter from his doctor with more detail as to his capacity to work.  In the alternative, the employer sought permission from Mr Cyprys to request the information directly from the doctor.  Mr Cyprys did not provide the second letter and refused consent for the employer to contact the doctor directly.

The employer made further requests for the information over a 10 month period throughout which the employee was unfit for work.  At that point, Mr Cyprys requested the employer to dismiss him to enable him to be eligible to receive Centrelink benefits.  The employer complied with the request and dismissed Mr Cyprys.  However, unknown to the parties, it was not actually necessary for Mr Cyprys to be dismissed to be eligible to receive Centrelink benefits.

FWA held that whilst Mr Cyprys may have been dismissed because of a mistaken belief that it was necessary for him to receive Centrelink benefits, the employer would have at some point terminated his employment because Mr Cyprys had been unfit for work for 10 months and consistently refused to supply the requested medical information about his condition.  FWA therefore held that Mr Cyprys had been validly dismissed.

These two decisions emphasise the right of employers to scrutinise the adequacy of medical information provided by employees and to take reasonable steps to ascertain the validity of the medical information provided to them.

For more information, please contact:

Ian Curlewis Michael Jensen
Partner Senior Associate
(08) 9288 6756 (08) 9288 6944



Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.