With flu season well and truly upon us, employers won’t be surprised to hear that sick leave is on the rise. Although figures vary, some reports suggest Australians take an average of 13.8 sick days a year. What’s more, a recent survey has reported that 70.8% of the working population has taken an illegitimate “sickie” in the last 12 months.
Given the loss and the disruption to business operations that sick leave can cause, we often receive queries from clients such as:
- What can we do if we suspect an employee is illegitimately taking sick leave?
- Can an employer ask questions about, or even reject, an employee’s medical certificate?
Whilst the answer depends on the circumstances, this blog sets out some relevant information based on the current state of the law.
Medical certificates
The starting position is that employers should accept a signed medical certificate from a qualified medical practitioner as sufficient evidence of illness or injury.
The Fair Work Act requires an employee to provide evidence that would satisfy a reasonable person that the leave is being taken because the employee is not fit for work because of a personal illness or injury. A signed medical certificate is generally considered evidence that would satisfy a reasonable person.
The AMA Guidelines for Medical Practitioners on Certificates Certifying Illness 2011. Revised 2016, state that a medical certificate should include:
- the name and address of the medical practitioner issuing the certificate;
- the name of the patient;
- the date on which the certificate was issued;
- the date(s) on which the patient is or was unfit for work.
It is important to note that a diagnosis of the medical condition or injury is not usually required, unless this is a requirement in the employee’s employment contract or applicable award or enterprise agreement.
To question or not to question? Tips for your business
An employer can question or reject an employee’s medical certificate in exceptional circumstances. However, questioning or terminating an employee over a perceived illegitimate sick day can be fraught with danger for employers due to the sensitive nature of medical conditions.
In light of this, employers should always err on the side of caution when considering disciplinary action and consider the following points:
- Are there obvious and unusual circumstances surrounding the sick leave which show it is not legitimate and that can be proven with evidence?
- Has the employee complied with their contract and the employer policies regarding sick leave?
- Does the medical certificate contain the key details outlined above? Does it cover a period of unfitness for work before the date of the consultation, or has it been backdated? Was the certificate issued without a consultation with the employee?
Furthermore, an employer should not simply reject a medical certificate, rather take further steps to determine whether an employee is genuinely unfit for work, including providing them with an opportunity to respond.
When can an employer question a medical certificate?
The following cases are examples of situations in which an employer has rightfully questioned or refused to accept a medical certificate.
Tokoda v Westpac Banking Corporation [2012] FWA 1262
In this case Ms Tokoda took sick leave for two days and provided a medical certificate to her manager upon returning. The manager noticed that the certificate did not have the doctor’s provider number on it, so she called the doctor to confirm he wrote the certificate.
It was then revealed that the certificate was a forgery and the doctor had not seen Ms Tokoda for several years. After an investigation, Ms Tokoda was terminated due to the falsification of the certificate and the consequential loss of trust by the employer.
Ms Tokoda claimed she was forced to falsify the certificate because she could not afford the doctor and was being bullied by colleagues. Ms Tokoda’s evidence was rejected by Commissioner Deegan, who decided that the termination was fair and the employer (a bank) required a high level of trust and integrity from employees. The falsification of a medical certificate and dishonesty were relevant grounds for dismissal.
Gadzikwa v Australian Government Department of Human Services [2018] FWC 4878
This case illustrates that employers may be entitled to reject employees’ medical certificates when they are too vague. Mr Gadzikwa had been on extended unpaid personal leave due to a mental health condition. When he was due to return to work, he was advised he would need to provide his employer with proof of his fitness to work.
Mr Gadzikwa provided a brief medical certificate from his treating practitioner, stating he was fit to perform “light duties”. His employer asked for more details but this was met with arguments and an incomplete response. Ultimately, Mr Gadzikwa was terminated for not providing complete medical information.
Mr Gadzikwa brought a claim for unfair dismissal, alleging that the medical certificate he provided was sufficient evidence of his fitness to work.
The claim failed because Deputy President Colman found that Mr Gadzikwa had failed to provide proper medical clearance at the conclusion of his authorised leave. The medical certificate:
- did not specify the nature of the duties the employee was and was not fit to perform,
- did not include any reasoning for the employee being fit for work in circumstances where the same doctor and another doctor had previously concluded that the employee was unfit for work,
- did not describe the necessary length of time for any modified working arrangements or a date when the employee could return to his substantive position, and
- was submitted two weeks late.
Online medical certificates
Medical certificates issued by online providers such as InstantScripts are increasingly being submitted in Australian workplaces. These certificates can be generated quickly and inexpensively, with some options not requiring any consultation with a medical professional. For instance, InstantScripts offers single-day medical certificates for $19, which are issued based solely on self-reported information from the patient, without any direct consultation with a doctor. Only multiple-day certificates require a telehealth appointment.
In Fair Work Ombudsman v More Than Skin Pty Ltd (No 2) [2023] FedCFamC2G 1177 the Federal Circuit and Family Court considered the adequacy of an InstantScript single day certificate issued in the context of a party’s non-attendance at Court. The Court found that the medical certificate was entirely inadequate because it did not specify the illness or explain why the person was medically unfit to attend court. Furthermore, even if the certificate had contained this information, the Court stated it would not have been inclined to accept a medical certificate generated from an online provider like InstantScript, as in the absence of any medical examination or consultation, it carried no greater weight than a statement written by the individual themselves.
Although the Court’s observations were in relation to court proceedings, they may still have relevance to an employer’s assessment of whether an online generated medical certificate is reasonable evidence in support of a request to take personal/carer’s leave.
How Justitia can help
The team at Justitia can assist your organisation to understand its obligations with respect to personal/carer’s leave and navigate how to proceed if you are presented with a questionable medical certificate.
Get in touch with our friendly team: contact us.
