Sick Leave & Social Media — A Dangerous Duo

The Facts 

The case involved a solicitor employed by a Melbourne law firm who took personal leave in April 2024. On the surface, he claimed to be unwell — he emailed his employer on the Friday morning that he was not well enough to attend work. In reality, he had flown interstate on the Thursday evening to spend the weekend in Adelaide attending AFL ‘Gather Round’ matches, drinking at pubs and socialising with friends on the beach before returning home on the Monday. 

Despite telling the employer that he was still “in discomfort” and unable to take public transport, he later produced an online medical certificate to cover the Monday absence. For the Friday, he provided only a statutory declaration stating he had been “unwell and unable to work”. 

While the firm initially approved his paid sick leave, a few months later it uncovered photos on the employee’s social media showing his weekend activities. This discovery led to an internal review, and ultimately to the employee's summary dismissal for dishonesty and serious misconduct. 

In turn, the employee lodged an unfair dismissal claim, asserting the termination was harsh, unjust and/or unreasonable. 

The Fair Work Commission’s Findings 

Deputy President Bell ruled that the employer had a reasonable basis to conclude the employee not unfit for work and had instead deliberately misrepresented his condition. The evidence showed he was socialising and engaging in normal activities inconsistent with his illness.

The Commission found the employee: 

• Was not sick or unfit for work, as he had claimed;
• Provided no credible evidence of his illness, relying solely on his own account;
• Provided a statutory declaration that he was unwell and unable to work which was misleading;
• Made false or careless statements to the Commission in support of his unfair dismissal claim; and
• Engaged in conduct that was “utterly incompatible” with his role in the legal profession.
• The FWC accepted the employer’s position that falsely claiming sick leave and submitting a misleading statutory declaration amounted to serious misconduct, warranting immediate dismissal.

Relevance to Member Clubs

Although this matter arose in a legal practice, the underlying principles are just as applicable to member clubs in managing employees accessing their entitlements. This case highlights several key takeaways for those responsible for managing employees in member clubs:

1. Credible evidence matters: Social media, flight records, and behavioural patterns can all form part of a legitimate inquiry into potential misconduct.
2. Statutory Declarations are serious documents: If an employee submits a false declaration, this in itself may constitute grounds for disciplinary action, including termination of employment.
3. Leave verification is a management responsibility: While smaller teams may operate on trust, this decision shows that follow-up actions are justified where inconsistencies arise.
4. Appropriate medical evidence may be required: Under the Fair Work Act 2009 (Cth), a club can require an employee to provide suitable evidence, which may include a medical certificate, if they are unfit for work, even for one day. This evidence should confirm that they are unfit for work due to an illness or injury and their expected return date.

Member clubs may implement policies for employees taking personal/carer’s leave and the evidence they are required to provide when accessing such leave. 

For assistance with any employment issues or queries, member clubs can contact the Workplace Relations Team at ClubsNSW via ClubASSIST on 1300 730 001.