April 13, 2025 • 12 mins
Last week, the Fair Work Commission ruled against a Melbourne lawyer who was fired after chucking a sickie to attend the AFL Gather Round in Adelaide last year. The case has sparked a national conversation about sick leave, when it's appropriate to use it, and what rights employers have when they suspect an employee is lying about needing to take a day off.
Hosts: Sam Koslowski and Zara Seidler
Producer: Orla Maher
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
Already and this this is the daily This is the
Daily ohs oh, now it makes sense.
Speaker 2 (00:14):
Good morning and welcome to the Daily OS. It's Monday,
the fourteenth of April. I'm Sam Kozlowski.
Speaker 3 (00:19):
I'm Zara Seidler.
Speaker 2 (00:20):
It's Monday, and that is the most popular day of
the week for workers around Australia to chuck a siki.
You might actually be listening to this as you're in
the process of chucking a siki right now. And we've
all heard it before. Chucking asiki is a bit of
an Australian tradition, but last week the Farework Commission ruled
against a Melbourne lawyer who was fired after chucking asiki
(00:42):
to attend the AFL gather round in Adelaide last year.
The case has sparked a national conversation about sick leave,
when it's appropriate to use it, and what rights employers
actually have if they suspect an employee is lying about
needing to take a day off.
Speaker 3 (01:01):
Sam.
Speaker 1 (01:01):
Never before in the history of the podcast has chuck
asiki been said so many probably ever been said before.
Speaker 3 (01:07):
But then secondary to that said so many times.
Speaker 2 (01:09):
I need to focus on making it sound like one word.
Speaker 1 (01:12):
I don't know if you've six anyway, this is a
very wild story, one that has invigorated the office like
very few stories do I believe the last time this
happened was about the scientific discovery pertaining to a snake.
Speaker 3 (01:27):
This is not what today is about.
Speaker 1 (01:28):
Today is about actually a legal standard that has now
been set.
Speaker 3 (01:32):
So take us back to the beginning. Why are we
talking about chucking asiki?
Speaker 2 (01:36):
Okay, So let me tell you about a Melbourne lawyer
named Mitchell Fuller. Now, in April last year, he called
in sick on a Friday to his law firm and
he told his employer that he had a tough time
sleeping and that he wasn't feeling up to coming into
the office. Then on the following Monday, he sent another
email saying he was still in a bit of discomfort
(01:57):
and couldn't quote hack taking public transport. He even obtained
a medical certificate for that day from an online provider.
But in reality, Fuller had flown to Adelaide on the
Thursday night to watch the AFL gather Round, which is
the annual round where all AFL teams play the same city.
It's a bit of a festival of football. It actually
just happened this weekend. So it's interesting timing.
Speaker 3 (02:20):
Look at that homeliness. That's why we're doing it today.
Need us all alone.
Speaker 2 (02:24):
Yeah, I'm actually recording this from gathering. I'm here. Over
that weekend, he attended a number of football games, He
went to the beach, he spent time at the pub,
all of which he later posted about on Instagram.
Speaker 3 (02:36):
There's so much to their mistake number one.
Speaker 1 (02:38):
I don't know really where to start with that one,
but I am guessing that his employer found out.
Speaker 2 (02:43):
Yes, the top secret SIKI mission actually went undetected for
about three months though, so he had a good run.
Fast forward now to July of last year, and the
law firm that Fuller worked at engaged an HR consultant
to help with unrelated performance issues that full of experiencing.
That consultant then checked Fuller's social media, connected some dots
(03:06):
and figured out that Fuller had indeed chuck to SICKI.
Speaker 1 (03:09):
Imagine thinking you'd gotten away with it, only to learn
three months later that in fact, you have not, because.
Speaker 2 (03:14):
I imagine there would have been probably ten to twelve
weeks of anxiety there that you were going to be discovered.
And that was probably over the crest. That was probably
the safe.
Speaker 3 (03:22):
Zone, okay.
Speaker 1 (03:22):
And so it was found out that he was at
the AFL gather around. He was not sick at home
in bed. So what happened then.
Speaker 2 (03:30):
So he was fired. So the workplace confronted him about
the posts. They gave him a chance to respond, and
after the response, the law firm terminated his employment. And
that takes us to August of last year. Now. In
his defense, Fuller argued that he believed he was entitled
to take what he called a mental health day as
part of his sickle entitlements. That all led to him
(03:52):
filing an unfair dismissal claim with the Fair Work Commission,
and that's why we're talking about it today. We have
that judgment now.
Speaker 1 (03:58):
Okay, So before we get the judgment, I am keen
to just unpack a little bit more about what Fuller
actually said when he was defending himself before the Fair
Work Commission. You mentioned their mental health days, something that
we hear and we talk a lot about as employers.
Speaker 3 (04:14):
I'm really keen to understand his argument here.
Speaker 2 (04:17):
So basically, he kind of laid out three core arguments.
On the first argument, he said he actually was unwell
on those days. He told the commission that he has
ADHD and there had been a nationwide shortage of his medication. Then, secondly,
he argued that taking personal leave for a mental health
(04:37):
day shouldn't be considered misconduct. He said that feeling stressed
or anxious about work did justify using his sickle entitlements.
And then finally, he claims that the actual dismissal process
run by the law firm wasn't fair. He wasn't given
an opportunity to properly respond to the allegations, and therefore
that was enough for the unfair dismissal. When you take
(04:57):
all of that together, he basically was saying sick because
I am entitled to it, and he didn't give me
a chance to respond.
Speaker 3 (05:03):
Yeah.
Speaker 1 (05:04):
Fascinating, and so obviously we led at the top with
the fact that the Fair Work Commission didn't agree, didn't
accept those arguments, talk me through the ruling.
Speaker 2 (05:14):
So the commission ultimately ruled that the dismissal from the
law firm was totally justified. They found that Fuller had
knowingly made false statements to his employer in emails and
had wrongly claimed paid sick leave when he wasn't entitled
to it. Now, I think one of the things that's
interesting and particularly related to this case is that his
(05:35):
actual job formed part of the reasoning. He was a lawyer,
and lawyers are expected to tell the truth and to
be upstanding citizens who with operating our legal system, and
the ruling stated that Fuller's conduct was quote utterly incompatible
with his ongoing employment as a solicitor, where integrity and
honesty are paramount. And what I found interesting about that
(05:56):
point is this common thread I discovered in learning more
about the Failwork Commission that every case really is quite different,
and there are kind of these core principles that go
across them, but it really is about the individual, the worker,
the circumstances. Another thing I found really interesting was the
commission founds that simply feeling you'd be better off after
having a day off work is different to being unfit
(06:19):
for work because of an illness and a mental health illness,
and that's actually the requirement under the Fair Work Act
for taking paid personal leave.
Speaker 1 (06:28):
Well, I mean it is interesting because so for example,
with our business, when people go in to put leave
on zero, which is how we log our leave applications
and it's a platform that hundreds of millions of businesses
around the world use. You actually can't distinguish your sickly
from say, mental health leave, right, so it's all your
personal leave. And so it's really interesting that we're now
(06:51):
breaking down and distinguishing why and how you can use
each of those different kind of leave applications.
Speaker 2 (06:57):
But also we're talking here about what does a mental
health day actually mean? Yeah, And there was this really
interesting part of the judgment whether the Commission basically said,
there are not many people whose outlook on life, health
or work wouldn't be improved by taking a paid day
off and spending it with friends, but that does not
agree more. Yeah, but that doesn't elevate those circumstances to
(07:19):
unfit for work because of an illness or injury. And
while we're talking there about the definition of a sick
day in the Fair Work Act, which is that you
need a day because you can't work because of personal
illness or injury. And so the Commission was differentiating between
obviously we all feel better with the day off, but
does that mean you're entitled to a mental health day
(07:42):
And the answer was no, you have to be unable
to work not just reckon you'll feel a bit better.
Speaker 1 (07:49):
And so if that's the rationale held by the Fair
Work Commission, does that mean that your employer can always
ask you for a reason for your sick leave.
Speaker 2 (07:58):
Yeah, so employers are entitled to ask for evidence that
gives them an understanding that you're genuinely entitled to paid sickly.
It doesn't always have to be a medical certificate. It
can also be a statutory declaration, which is basically when
you write a statement and you swear it's true and
often get it certified by a witness. But here's another
really interesting part of this case. Just getting a medical
(08:18):
certificate might not actually be enough either. In Fuller's case,
the evidence on social media of his attendance at the
pub and the footy actually kind of ruled out the
validity of the medical certificate. One other interesting point that
I'm not sure the Commission really knows what to do
with just yet is that he got the medical certificate
(08:39):
from an online consert.
Speaker 3 (08:41):
Going to ask you about that.
Speaker 2 (08:42):
Yeah, And the Commission said that because the certificate was
based only on what Fuller told the doctor, not a
proper assessment. There was also a bit of doubt over
the validity of the certificate, So there's no heart and
fast rule there. The Commission didn't say you can't get
an online medical seas certificate, but it just it is suitable.
Speaker 1 (09:03):
All of it is murkying, so much of it is
gray here, and I think that speaks to how significant
this ruling actually is. What does this ruling mean for
you and I, for the team that works with us,
what does it mean for employers and employees across the country.
Speaker 2 (09:18):
It's a really tricky one to Answerszara. As I mentioned before,
there's this kind of unique set of individual circumstances that
surround every unfair dismissal case. There's obviously minimum standards of
employment and awards and all of that kind of stuff,
But when you get to that level of being in
front of the Commission, they look at the whole picture.
But ultimately there's kind of three main things I took
(09:40):
from this judgment. One was that you can't take sick
leave when you're not sick, and it's not a good
look when you deliberately deceive your employer. Two is that
social media posts can be used as valid evidence in
front of the Commission for a workplace dispute, and three
the most complicated one. While genuine mental health issues are
(10:02):
valid reasons for a sick day, you can't just label
any day as a mental health day purely because you'd
feel better off after taking it.
Speaker 3 (10:10):
Yeah.
Speaker 1 (10:10):
See, that's the point that I'm struggling to wrap my
head around, because who is determining what a genuine mental
health day looks like or feels like for any given person.
If you've sustained a period of burnout over say three months,
what then well.
Speaker 2 (10:26):
Let's bring this to the facts of the case. This
case at its heart is about deception. It's not about
a genuinely trusting relationship between an employee and employer. It's
about falsely getting medical certificates when you're putting on social
media that you're at a live sporting event. And so
I think that's really important not to conflate the two.
(10:48):
And in a lot of the materials that the Farework
Commission puts out, they're constantly referring to encouraging employees to
have honest conversations with their employer. And let's think about it.
From you and I, if somebody came to us and said,
I've just worked really, really hard for x amount of time.
I'm feeling burnt out, I'm feeling tired. I would like
to take a sick day. We'd save course, and so
(11:10):
then they could go to the footy and all that
kind of thing if we had had a basis of
a trusting relationship before that day off.
Speaker 1 (11:17):
All in all, there are so many elements here that
are uniquely modern, you know, the finding out on social media,
the telehealth appointment. There's a lot here that you know,
even fair Work will need to catch up with when
it comes to modern day workplaces and employee employer relationships.
All of this is super interesting. I bet mister Fuller
(11:40):
didn't think that going to those footy matches would spark
a national conversation, but here we find ourselves and no
doubt the beginning of many Sam, thank you for explaining that,
and thank you for listening to another episode of The
Daily Oz. We've got another big week of headlines and
deep dives ahead of us, so make sure you tune
in later today that until then, have a great day.
Speaker 2 (12:06):
My name is Lily Maddon and I'm a proud Arunda
Bunjelung Calcuttin woman from Gadighl Country. The Daily oz acknowledges
that this podcast is recorded on the lands of the
Gadighl people and pays respect to all Aboriginal and torrest
Rate island and nations. We pay our respects to the
first peoples of these countries, both past and present.
Already and this this is the daily This is the
Daily ohs oh, now it makes sense.
Speaker 2 (00:14):
Good morning and welcome to the Daily OS. It's Monday,
the fourteenth of April. I'm Sam Kozlowski.
Speaker 3 (00:19):
I'm Zara Seidler.
Speaker 2 (00:20):
It's Monday, and that is the most popular day of
the week for workers around Australia to chuck a siki.
You might actually be listening to this as you're in
the process of chucking a siki right now. And we've
all heard it before. Chucking asiki is a bit of
an Australian tradition, but last week the Farework Commission ruled
against a Melbourne lawyer who was fired after chucking asiki
(00:42):
to attend the AFL gather round in Adelaide last year.
The case has sparked a national conversation about sick leave,
when it's appropriate to use it, and what rights employers
actually have if they suspect an employee is lying about
needing to take a day off.
Speaker 3 (01:01):
Sam.
Speaker 1 (01:01):
Never before in the history of the podcast has chuck
asiki been said so many probably ever been said before.
Speaker 3 (01:07):
But then secondary to that said so many times.
Speaker 2 (01:09):
I need to focus on making it sound like one word.
Speaker 1 (01:12):
I don't know if you've six anyway, this is a
very wild story, one that has invigorated the office like
very few stories do I believe the last time this
happened was about the scientific discovery pertaining to a snake.
Speaker 3 (01:27):
This is not what today is about.
Speaker 1 (01:28):
Today is about actually a legal standard that has now
been set.
Speaker 3 (01:32):
So take us back to the beginning. Why are we
talking about chucking asiki?
Speaker 2 (01:36):
Okay, So let me tell you about a Melbourne lawyer
named Mitchell Fuller. Now, in April last year, he called
in sick on a Friday to his law firm and
he told his employer that he had a tough time
sleeping and that he wasn't feeling up to coming into
the office. Then on the following Monday, he sent another
email saying he was still in a bit of discomfort
(01:57):
and couldn't quote hack taking public transport. He even obtained
a medical certificate for that day from an online provider.
But in reality, Fuller had flown to Adelaide on the
Thursday night to watch the AFL gather Round, which is
the annual round where all AFL teams play the same city.
It's a bit of a festival of football. It actually
just happened this weekend. So it's interesting timing.
Speaker 3 (02:20):
Look at that homeliness. That's why we're doing it today.
Need us all alone.
Speaker 2 (02:24):
Yeah, I'm actually recording this from gathering. I'm here. Over
that weekend, he attended a number of football games, He
went to the beach, he spent time at the pub,
all of which he later posted about on Instagram.
Speaker 3 (02:36):
There's so much to their mistake number one.
Speaker 1 (02:38):
I don't know really where to start with that one,
but I am guessing that his employer found out.
Speaker 2 (02:43):
Yes, the top secret SIKI mission actually went undetected for
about three months though, so he had a good run.
Fast forward now to July of last year, and the
law firm that Fuller worked at engaged an HR consultant
to help with unrelated performance issues that full of experiencing.
That consultant then checked Fuller's social media, connected some dots
(03:06):
and figured out that Fuller had indeed chuck to SICKI.
Speaker 1 (03:09):
Imagine thinking you'd gotten away with it, only to learn
three months later that in fact, you have not, because.
Speaker 2 (03:14):
I imagine there would have been probably ten to twelve
weeks of anxiety there that you were going to be discovered.
And that was probably over the crest. That was probably
the safe.
Speaker 3 (03:22):
Zone, okay.
Speaker 1 (03:22):
And so it was found out that he was at
the AFL gather around. He was not sick at home
in bed. So what happened then.
Speaker 2 (03:30):
So he was fired. So the workplace confronted him about
the posts. They gave him a chance to respond, and
after the response, the law firm terminated his employment. And
that takes us to August of last year. Now. In
his defense, Fuller argued that he believed he was entitled
to take what he called a mental health day as
part of his sickle entitlements. That all led to him
(03:52):
filing an unfair dismissal claim with the Fair Work Commission,
and that's why we're talking about it today. We have
that judgment now.
Speaker 1 (03:58):
Okay, So before we get the judgment, I am keen
to just unpack a little bit more about what Fuller
actually said when he was defending himself before the Fair
Work Commission. You mentioned their mental health days, something that
we hear and we talk a lot about as employers.
Speaker 3 (04:14):
I'm really keen to understand his argument here.
Speaker 2 (04:17):
So basically, he kind of laid out three core arguments.
On the first argument, he said he actually was unwell
on those days. He told the commission that he has
ADHD and there had been a nationwide shortage of his medication. Then, secondly,
he argued that taking personal leave for a mental health
(04:37):
day shouldn't be considered misconduct. He said that feeling stressed
or anxious about work did justify using his sickle entitlements.
And then finally, he claims that the actual dismissal process
run by the law firm wasn't fair. He wasn't given
an opportunity to properly respond to the allegations, and therefore
that was enough for the unfair dismissal. When you take
(04:57):
all of that together, he basically was saying sick because
I am entitled to it, and he didn't give me
a chance to respond.
Speaker 3 (05:03):
Yeah.
Speaker 1 (05:04):
Fascinating, and so obviously we led at the top with
the fact that the Fair Work Commission didn't agree, didn't
accept those arguments, talk me through the ruling.
Speaker 2 (05:14):
So the commission ultimately ruled that the dismissal from the
law firm was totally justified. They found that Fuller had
knowingly made false statements to his employer in emails and
had wrongly claimed paid sick leave when he wasn't entitled
to it. Now, I think one of the things that's
interesting and particularly related to this case is that his
(05:35):
actual job formed part of the reasoning. He was a lawyer,
and lawyers are expected to tell the truth and to
be upstanding citizens who with operating our legal system, and
the ruling stated that Fuller's conduct was quote utterly incompatible
with his ongoing employment as a solicitor, where integrity and
honesty are paramount. And what I found interesting about that
(05:56):
point is this common thread I discovered in learning more
about the Failwork Commission that every case really is quite different,
and there are kind of these core principles that go
across them, but it really is about the individual, the worker,
the circumstances. Another thing I found really interesting was the
commission founds that simply feeling you'd be better off after
having a day off work is different to being unfit
(06:19):
for work because of an illness and a mental health illness,
and that's actually the requirement under the Fair Work Act
for taking paid personal leave.
Speaker 1 (06:28):
Well, I mean it is interesting because so for example,
with our business, when people go in to put leave
on zero, which is how we log our leave applications
and it's a platform that hundreds of millions of businesses
around the world use. You actually can't distinguish your sickly
from say, mental health leave, right, so it's all your
personal leave. And so it's really interesting that we're now
(06:51):
breaking down and distinguishing why and how you can use
each of those different kind of leave applications.
Speaker 2 (06:57):
But also we're talking here about what does a mental
health day actually mean? Yeah, And there was this really
interesting part of the judgment whether the Commission basically said,
there are not many people whose outlook on life, health
or work wouldn't be improved by taking a paid day
off and spending it with friends, but that does not
agree more. Yeah, but that doesn't elevate those circumstances to
(07:19):
unfit for work because of an illness or injury. And
while we're talking there about the definition of a sick
day in the Fair Work Act, which is that you
need a day because you can't work because of personal
illness or injury. And so the Commission was differentiating between
obviously we all feel better with the day off, but
does that mean you're entitled to a mental health day
(07:42):
And the answer was no, you have to be unable
to work not just reckon you'll feel a bit better.
Speaker 1 (07:49):
And so if that's the rationale held by the Fair
Work Commission, does that mean that your employer can always
ask you for a reason for your sick leave.
Speaker 2 (07:58):
Yeah, so employers are entitled to ask for evidence that
gives them an understanding that you're genuinely entitled to paid sickly.
It doesn't always have to be a medical certificate. It
can also be a statutory declaration, which is basically when
you write a statement and you swear it's true and
often get it certified by a witness. But here's another
really interesting part of this case. Just getting a medical
(08:18):
certificate might not actually be enough either. In Fuller's case,
the evidence on social media of his attendance at the
pub and the footy actually kind of ruled out the
validity of the medical certificate. One other interesting point that
I'm not sure the Commission really knows what to do
with just yet is that he got the medical certificate
(08:39):
from an online consert.
Speaker 3 (08:41):
Going to ask you about that.
Speaker 2 (08:42):
Yeah, And the Commission said that because the certificate was
based only on what Fuller told the doctor, not a
proper assessment. There was also a bit of doubt over
the validity of the certificate, So there's no heart and
fast rule there. The Commission didn't say you can't get
an online medical seas certificate, but it just it is suitable.
Speaker 1 (09:03):
All of it is murkying, so much of it is
gray here, and I think that speaks to how significant
this ruling actually is. What does this ruling mean for
you and I, for the team that works with us,
what does it mean for employers and employees across the country.
Speaker 2 (09:18):
It's a really tricky one to Answerszara. As I mentioned before,
there's this kind of unique set of individual circumstances that
surround every unfair dismissal case. There's obviously minimum standards of
employment and awards and all of that kind of stuff,
But when you get to that level of being in
front of the Commission, they look at the whole picture.
But ultimately there's kind of three main things I took
(09:40):
from this judgment. One was that you can't take sick
leave when you're not sick, and it's not a good
look when you deliberately deceive your employer. Two is that
social media posts can be used as valid evidence in
front of the Commission for a workplace dispute, and three
the most complicated one. While genuine mental health issues are
(10:02):
valid reasons for a sick day, you can't just label
any day as a mental health day purely because you'd
feel better off after taking it.
Speaker 3 (10:10):
Yeah.
Speaker 1 (10:10):
See, that's the point that I'm struggling to wrap my
head around, because who is determining what a genuine mental
health day looks like or feels like for any given person.
If you've sustained a period of burnout over say three months,
what then well.
Speaker 2 (10:26):
Let's bring this to the facts of the case. This
case at its heart is about deception. It's not about
a genuinely trusting relationship between an employee and employer. It's
about falsely getting medical certificates when you're putting on social
media that you're at a live sporting event. And so
I think that's really important not to conflate the two.
(10:48):
And in a lot of the materials that the Farework
Commission puts out, they're constantly referring to encouraging employees to
have honest conversations with their employer. And let's think about it.
From you and I, if somebody came to us and said,
I've just worked really, really hard for x amount of time.
I'm feeling burnt out, I'm feeling tired. I would like
to take a sick day. We'd save course, and so
(11:10):
then they could go to the footy and all that
kind of thing if we had had a basis of
a trusting relationship before that day off.
Speaker 1 (11:17):
All in all, there are so many elements here that
are uniquely modern, you know, the finding out on social media,
the telehealth appointment. There's a lot here that you know,
even fair Work will need to catch up with when
it comes to modern day workplaces and employee employer relationships.
All of this is super interesting. I bet mister Fuller
(11:40):
didn't think that going to those footy matches would spark
a national conversation, but here we find ourselves and no
doubt the beginning of many Sam, thank you for explaining that,
and thank you for listening to another episode of The
Daily Oz. We've got another big week of headlines and
deep dives ahead of us, so make sure you tune
in later today that until then, have a great day.
Speaker 2 (12:06):
My name is Lily Maddon and I'm a proud Arunda
Bunjelung Calcuttin woman from Gadighl Country. The Daily oz acknowledges
that this podcast is recorded on the lands of the
Gadighl people and pays respect to all Aboriginal and torrest
Rate island and nations. We pay our respects to the
first peoples of these countries, both past and present.
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