The Fair Work Commission (FWC) has rejected an employee’s claim of unfair dismissal after discovering he had travelled interstate and socialised on days he had claimed paid personal leave.
Madison Branson Lawyers, which had fewer than 15 employees at the time, successfully argued that the dismissal was both justified and procedurally sound under the Small Business Fair Dismissal Code.
The case serves as a timely reminder for small real estate business owners about how the Code operates and the importance of having clear, well-documented grounds when terminating employment.
Mitchell Fuller was expected to attend work in Melbourne on Friday, April 5 and Monday, April 8 2024. Instead – which was discovered three months later – he flew to Adelaide on Thursday April 4, met friends, attended football games, visited the beach and went to hospitality venues.
On April 5, Mr Fuller emailed the firm saying he was unwell, would not be coming in and would obtain a medical certificate. On April 28, he supplied a statutory declaration claiming he had been unable to see his usual GP on April 5, and that another doctor could not backdate a certificate. Months later, he produced a medical certificate dated October 9, 2024 – based on information from this October date and not on the days of his absence.
On April 8, he again emailed to say he was still unwell and obtained a medical certificate online without speaking to a medical practitioner. The FWC found there was no credible evidence Mr Fuller was unfit for work on either date.
The leave incident was separate from ongoing performance concerns, including Mr Fuller working on a locked file after being instructed not to. A HR consultant engaged to assist the firm independently reviewed Mr Fuller’s social media, uncovering posts of him out and about during the sick leave days.
Once this evidence was presented, the firm suspended Mr Fuller on pay and held a meeting to address the allegations. Believing he had made a false statutory declaration and falsified leave requests, the firm terminated his employment immediately.
The FWC applied the two-step test under the Code:
The FWC found Mr Fuller had booked his Adelaide flight days in advance and had no intention of being at work on April 5. It accepted the employer’s belief in his dishonesty was reasonable and that summary dismissal was justified.
The FWC described Mr Fuller’s defence – that the firm had not proven he had damaged its reputation – as a “glib deflection”. The unfair dismissal application was dismissed, with no compensation payable.
This case reinforces that serious misconduct – including dishonesty about sick leave – can justify immediate dismissal if a small business employer holds a genuine belief, backed by reasonable evidence. Fraud, dishonesty or wilful breaches of duty can all meet this threshold.
While small businesses are not legally required to complete the Small Business Fair Dismissal Code checklist, doing so is considered best practice. Employers should retain the checklist and any supporting evidence in case of a later claim.
Before terminating, employers should ensure:
The FWC will also consider the size of the business, the HR resources available and other relevant factors.
The full Small Business Fair Dismissal Code is available on the Fair Work Ombudsman website.
Have a question for us? Please call the Employee Relations Helpline to speak with an Employee Relations Advisor on 08 9365 7660 or email advice@cciwa.com
CCIWA, Business Law WA and REEFWA has taken all reasonable care in preparing this document. The contents of this document do not constitute legal advice and should not be relied upon as such. Specific advice for your situation should be sought from CCIWA, Business Law WA or a professional adviser before any action is taken. Neither REEFWA, CCIWA nor Business Law WA accept responsibility for any claim that arises from any person acting or refraining from acting on the information contained in this document.
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