When a medical certificate does not add up
It starts with an absence that does not quite add up. An employee phones in unwell, takes the day either side of a public holiday, and returns with a medical certificate that looks photocopied, or names a practice you cannot find, or covers dates that do not match what they told you. You are now deciding whether to pay the leave, challenge the certificate, or start disciplinary action, and the cost of getting it wrong can be a claim in the Fair Work Commission.
Done properly, this process ends with a documented decision you can defend. Either the evidence stands up and the leave is paid, or no acceptable evidence was produced and the absence is treated as unpaid, or the certificate turns out to be dishonest and the employee is disciplined, including dismissal. What the process does not include is acting on suspicion alone. The law does not let you withhold pay or dismiss someone simply because you do not believe a certificate, and it does not entitle you to demand the doctor's opinion about the employee's health. Both assumptions cause more trouble than the forgeries themselves.
Before you start: what you need in place
Assemble the following before you take any step:
- A reasonable request for evidence: Under s 107 of the Fair Work Act 2009 (Cth) (the Act), an employee who takes personal or carer's leave must, if required, give evidence that would satisfy a reasonable person that the leave was taken for a permitted reason. The Fair Work Ombudsman confirms you can ask for this evidence for as little as one day off work, and an award, enterprise agreement or workplace policy can set out when evidence is due and what form it must take.
- The certificate and the records of the absence: the certificate itself, the dates and times the employee gave notice, and any messages or emails about the leave. You will test the certificate against these.
- A written personal leave policy: one that states what evidence employees must provide, by when, and the consequences of providing a false document.
- A clear picture of entitlements: full-time and part-time employees accrue 10 days of paid personal/carer's leave each year under s 96 of the Act, while casual employees have no paid personal/carer's leave entitlement at all.
- A check on who is protected: employees who have completed the minimum employment period, six months for most employers or twelve months for small businesses under s 383 of the Act, can challenge a dismissal as unfair, and small business employers must comply with the Small Business Fair Dismissal Code.
The prerequisite that trips up most employers is the policy. If you have never written down what evidence is required and when, a request made after the event can look like it is aimed at one person, and an unreasonable or inconsistent request weakens everything that follows.
The process, step by step
Confirm the entitlement and the evidence request
Be clear on the legal frame before you question anything. Section 97 of the Act lets an employee take paid personal/carer's leave when they are not fit for work because of a personal illness or injury, or to care for or support an immediate family or household member affected by illness, injury or an unexpected emergency. The evidence you ask for only needs to satisfy a reasonable person that the leave was taken for one of those reasons, not to prove a specific diagnosis.
The entitlement itself is structured to be used. Under s 96 the ten days accrue progressively across each year of service according to the employee's ordinary hours and accumulate from year to year, so a part-time employee's balance builds more slowly than a full-time employee's, and unused leave carries over rather than lapsing. Three points complete the picture:
- Who is covered: paid personal/carer's leave accrues only to employees who are not casuals, so a casual's absence is a different question.
- What the evidence must show: that the absence fits a permitted reason, judged by the reasonable person standard.
- What counts as evidence: a medical certificate or a statutory declaration are both acceptable in principle, and there are no strict rules on type, although the request must always be reasonable in the circumstances.
Check the certificate on its face
Before accusing anyone of fraud, look at the document itself. A legitimate certificate can still look generic: many practitioners issue certificates after telehealth consultations using standard wording, so a plain or photocopied-looking certificate is not evidence of anything by itself. What you are looking for is inconsistency. Check three things on the certificate:
- Dates and details: the certificate should cover the actual period of absence and identify the employee.
- Practitioner and practice: the certificate should name a registered health practitioner and a practice with contact details you could verify.
- Genuine telehealth certificates: a certificate issued after an online consultation is legitimate, so that feature alone does not make a certificate suspect.
There is also a consistency question worth asking before you go further. If the same certificate would be accepted without question from another employee, you should be able to explain why this one is different. The reasonableness standard cuts both ways: it protects employees from arbitrary demands, and it protects employers who apply a documented, even-handed evidence policy.
Verify issuance with the practice
The proportionate next step is to contact the practice that supposedly issued the certificate and ask a narrow question: did this practice issue this certificate? A practice will generally confirm whether a document came from it. What it will not do is discuss the employee's medical condition, and you should not ask. The Fair Work Ombudsman does not consider it reasonable for an employer to contact the employee's doctor for further information, and the Act itself notes that personal information given as leave evidence may be regulated under the Privacy Act 1988 (Cth). Keep the enquiry to verification of issuance, record who you spoke to and what they said, and do not treat the employee's decision not to consent to anything further as suspicious.
If the practice confirms the certificate, that is normally the end of the matter. The certificate satisfies the reasonable person standard and the leave should be paid. If the practice denies issuing it, you now have a concrete basis to take the next step.
Put the concern to the employee
This is the step employers skip, and it is the one that decides unfair dismissal outcomes. Under s 387 of the Act, the Commission asks whether there was a valid reason for a dismissal, whether the employee was notified of that reason, and whether they were given an opportunity to respond, including with a support person present. So once you have a concrete basis for doubt, put it to the employee in writing: identify the certificate, state the specific concern, and invite them to explain or to provide alternative evidence such as a statutory declaration. Cover three elements in that communication:
- What to say: the certificate in question, the specific concern about it, and a request for an explanation or supporting evidence.
- What to offer: a support person, a reasonable time to respond, and the option of a statutory declaration instead.
- What to record: your letter or email, the employee's response, and your assessment of it.
Keep an open mind about innocent explanations. A genuine telehealth consult, a certificate issued by a different practice than the one named, an administrative error by the practice, or leave taken to care for a family member rather than the employee's own illness can all explain an odd-looking document. Decide nothing until the response arrives.
Decide the outcome and handle the pay
At this point the process branches into three outcomes:
- Evidence accepted: if the practice confirms the certificate, or the employee produces acceptable evidence, pay the personal/carer's leave. Holding back pay against accepted evidence is an underpayment.
- No acceptable evidence: if the employee provides no evidence when asked, they may not be entitled to be paid for the absence. You can treat the absence as unpaid until satisfactory evidence or a statutory declaration is provided.
- Dishonesty established: if the certificate is confirmed as fabricated, that is fraud. The Fair Work Regulations 2009 (Cth) treat fraud as serious misconduct, which can justify summary dismissal. But dismissal still requires a valid reason and a fair process under s 385 and s 387 of the Act, the employee must have completed the minimum employment period, and an unfair dismissal application can be lodged within 21 days under s 394.
Separately, think about the real reason you would be dismissing. If the underlying motive is something other than the conduct, such as the employee having raised a complaint or taken leave, the dismissal can be challenged on grounds that have nothing to do with the certificate.
Where employers get held up
These are the points where employers most often go wrong:
- Acting on suspicion before asking: terminating without giving the employee a chance to respond is the fastest route to an unfair dismissal finding, even where the certificate is genuinely fake.
- Mistaking a generic certificate for a fake one: standard telehealth wording is normal, and challenging a genuine certificate damages trust and can itself be unreasonable conduct.
- Withholding pay mid-investigation: pay can only be withheld where no acceptable evidence was provided, not while you are still deciding whether to believe a certificate.
- Fishing for medical detail: asking the practice for the employee's diagnosis, or contacting the doctor for more information, goes beyond what is reasonable and what privacy law allows.
Where an employment lawyer fits into the process
The process is document-heavy and timing-sensitive, and the cost of getting a step wrong can be reinstatement or compensation. An employment lawyer is usually brought in at one of two points: before the show-cause letter goes out, or after a claim lands.
A practitioner can review your personal leave policy and its evidence clauses, advise on whether a particular request is reasonable, run or oversee the verification and show-cause steps so your records are defensible, and draft the correspondence and any termination letter. If the employee challenges the outcome, a lawyer can defend the unfair dismissal claim or another challenge, marshal the evidence of the fair process you followed, and negotiate a settlement where that is the cheaper path.
In practice the lawyer's role is to check each step against the tests the Commission will apply: was the evidence request reasonable, was the verification documented, was the employee told of the concern and given a real chance to respond, and does the outcome follow the evidence rather than the employer's irritation? Having that assessment on file before the decision is made is far cheaper than reconstructing it after a claim is filed.
What decides whether your decision holds up
The step that determines everything is the one in the middle: a genuine, documented opportunity for the employee to respond before you decide. A dismissal over a fabricated certificate can be entirely justified on the merits and still be found unfair because the employee was never asked. The Commission scrutinises process closely, and a contemporaneous record of each step, the request, the verification call, the letter, the response, the decision, is what turns a reasonable suspicion into a defensible outcome.
The rest of the framework is straightforward once the process is right. Employees other than casuals accrue paid personal/carer's leave and must provide evidence that satisfies a reasonable person when asked, which you can do from the first day of absence. Genuine certificates, including telehealth ones, should be accepted and paid. Where no acceptable evidence arrives, the absence can be treated as unpaid. And where the certificate is confirmed as fabricated, fraud is serious misconduct and dismissal is available, provided the employee was given a fair chance to respond first.