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My original report is here.

Appeal decision in full is here.

Background

This matter saw the respondent subjected to lost business opportunities due to its lack of proper processes, which were not assisted by (according to the Commissioner) by an unqualified HR Manager. There were seven witnesses called over two days of hearing, which was preceded by witness statements and, of course legal costs. The falsification of the medical certificate was discovered after the dismissal, and the Commissioner discounted the compensation paid by 30 percent because of this.

The company appealed

The appellant (ie the company) provided 16 grounds why the original decision should be set aside/quashed.

Grounds three to seven related to the falsification of the medical certificate:

“3. The Commissioner erred in failing to have regard to the Appellant’s submissions and the Respondent’s admission that the Respondent dishonestly advised the Appellant that she would be attending a specialist appointment which involved a 3-month waiting list and would therefore require time off work, when instead the Appellant attended a job interview.

“4. The Commissioner erred in [considering]…that ‘there was no financial gain for the Respondent by producing the medical certificate’ in determining the seriousness of the Respondent’s misconduct.

“5. The Commissioner erred in concluding that the act of falsifying a medical certificate was not wilful or inconsistent with the Respondent’s contract of employment…

“6. The Commissioner erred in concluding that producing a falsified medical certificate warranted disciplinary action, not termination of employment with or without notice…

“7. The Commissioner erred in failing to apply the reasoning in Halina Bluzer v Monash University [2017] FWCFB 4032 and Tokoda v Westpac Banking Corporation t/a Westpac [2012] FWA 1262 in relation to falsification medical certificates”.

The Full Bench in determining the application for appeal, noted that:

“It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal”.

[Ed: puzzling piece of logic?]

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The Full Bench concluding that:

“We are not satisfied that it would be in the public interest to grant permission to appeal. [the dismissed employee] unfair dismissal remedy application was determined on the basis of its own particular facts and raises no issue which warrants further appellate examination in the public interest”.

In relation to the falsification of the medical certificate:

“We do not consider that the issue of the falsified medical certificate involves any issue of principle or general application, contrary to the contention of [the company]. The decisions referred to [the company] in this connection do not establish any general principle of universal application that the falsification of a medical certificate will always constitute a valid reason for dismissal irrespective of the circumstances. Bluzer v Monash University was concerned with the purely factual consideration of whether the applicant for an unfair dismissal remedy in that case had falsified medical certificates as alleged by her employer. In Tokoda v Westpac Banking Corporation the falsification of a medical certificate was found to constitute a valid reason for dismissal, but it is notable that finding was in part based upon a non-acceptance of the applicant’s evidence that she did this “as an act of desperation” and was forced to falsify the certificate because she was being treated unfairly and bullied by her managers”.

 Commentary

Quite frankly, the mind boggles…in my opinion falsifying a medical certificate is fraud – pure and simple. If were to be asked the question of whether to dismiss an employee for such an instance (subject to due process), I would say, as they do in the classics “all day every day”. How on earth can trust be maintained where an employee has provided a fraudulent medical certificate to cover the fact that they attended a job interview elsewhere from the company? As I said: “the mind boggles”.