Sick leave – when does an employee need to provide a medical certificate?

When you are sick and need to take a day off work, the last thing you feel like doing is waiting in a doctor’s drop-in practice for hours to get a medical certificate for your boss. In this blog post I explain the situations when your employer can lawfully request evidence such as a medical certificate and the type of evidence which will satisfy the requirement.

 

Personal leave - basic principles

The material in this blog post is only relevant to national system employees to which the Fair Work Act 2009 (Fair Work Act) applies. The term used for sick leave in the Fair Work Act is “personal leave”. A full time employee is entitled to 10 days of paid personal/carer’s leave for each year of service (s.96 Fair Work Act). Personal leave accrues progressively during a year of service according to the employee’s ordinary hours of work and accumulates from year to year. Part time employees have the same pro rata entitlement. Employers cannot contravene a National Employment Standard and are subject to the Fair Work Act’s civil penalty regime if a contravention does occur (s.44). Accrued personal leave will not be cashed out unless an award or enterprise agreement applying to the employee permits cashing out (s.100).

 

A modern award or enterprise agreement cannot exclude a National Employment Standard such as the entitlement to personal leave in s.96 of the Fair Work Act. However, modern awards and enterprise agreements may contain certain additional clauses relating to personal leave including terms relating to the kind of evidence an employee must provide to be entitled to paid personal leave (s.107(5)). An employee to whom a modern award or enterprise agreement applies must therefore check the provisions of the relevant instrument to see whether more detailed evidence requirements apply than the basic requirements contained in s.107. 

 

Evidentiary requirements

Section 107 of the Fair Work Act provides the notice and evidence requirements for personal leave. After the employee provides notice of the personal leave to the employer, the employee must, if required by the employer, give the employer evidence that would satisfy a reasonable person that the leave is taken “because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee” (s.107 and s.97). Two questions arise:

1.                  When can an employer request evidence?

2.                  What type of evidence would satisfy a reasonable person?

 

When can an employer request evidence?

The words used in s.107 are “must, if required by the employer”. This appears to provide employers with broad power to request medical evidence. However, employers should consider whether requiring the medical evidence is reasonable. Situations where it would be reasonable to request medical evidence include where there is an extended absence, a particular pattern of absence, or the employer otherwise reasonably suspects the employee does not satisfy the requirements to take personal leave. Where the employer makes a request for the evidence, the evidence must be provided within a reasonable timeframe. A reasonable timeframe could be during the personal leave (if the personal leave is occurring over a long period of time), or after the personal leave has finished (if the personal leave is for a short period of time).

 

What type of evidence would satisfy a reasonable person?

A reasonable person would be satisfied by medical evidence such as a medical certificate. Personal leave may be taken where the employee “is not fit to work because of a personal illness, or personal injury, affecting the employee” (s.97). Note the “not fit to work” requirement. Having an illness or injury alone is not sufficient to take personal leave. Where a medical certificate is not obtained and an employer subsequently requests evidence, the employee may be able to submit a statutory declaration as evidence that would satisfy a reasonable person. However, a statutory declaration may not suffice where a modern award or enterprise agreement has more specific evidence requirements. A good example is the Telstra Enterprise Agreement 2015-2018.

 

Clause 32.2(a) provides that “medical evidence” must be provided to an employee’s manager if personal leave is more than 3 consecutive work days or if more than 5 personal leave days have already been taken during the leave year without providing evidence. A statutory declaration is unlikely to fall within the concept of “medical evidence”, especially when contrasted to clause 32.2(b) which expressly permits a statutory declaration be provided where the employer has requested evidence after forming a reasonable suspicion the employee is not entitled to the personal leave.

Modern awards and enterprise agreements may contain more specific provisions relating to personal leave evidentiary requirements.

Modern awards and enterprise agreements may contain more specific provisions relating to personal leave evidentiary requirements. It is therefore important to understand whether you are covered by a modern award or enterprise agreement. You should be able to find this information in your employment contract or letter of offer. If in doubt, you should talk to your employer’s human resources contact or call the Fair Work Ombudsman for advice.

Enterprise agreements often contain specific provisions relating to personal leave evidentiary requirements. In contrast, modern awards generally refer to the personal/carer’s leave in the National Employment Standards and do not provide additional evidentiary requirements for personal leave. For example, the Banking, Finance and Insurance Award 2010 provides “Personal/carer’s leave and compassionate leave are provided for in the NES”. Some modern awards provide for unpaid personal leave for casuals, such as the General Retail Industry Award 2010:

33.1 Personal/carer’s leave and compassionate leave are provided for in the NES.

33.2 Casual employees are entitled to be not available for work or to leave work to care for a person who is sick and requires care and support or who requires care due to an emergency.

33.3 Such leave is unpaid. A maximum of 48 hours absence is allowed by right with additional absence by agreement.

Case law on the evidentiary requirements of s.107 is limited:

1.      Australian and International Pilots Association v Qantas Airways Ltd [2014] FCA 32

This adverse action case concerned a pilot First Officer Greg Kiernan who took extended sick leave due to clinical depression. Mr Kiernan produced medical certificates, but Qantas requested a more detailed report that outlined his fitness to work in his role as a pilot and the expected timeframe to resume normal duties. Mr Kiernan argued he had satisfied this evidentiary requirement by providing the medical certificates and was not required to produce a more detailed report. The key provisions of the certified agreement were:

 

“31.3.7 Notifying the Company of illness

A flight crew member is required to notify the Company immediately upon becoming ill and will, as far as possible, state the nature of the illness and the estimated duration of absence.
...

31.3.10 When a medical certificate is required

(d) Before being required to produce a medical certificate or other evidence of unfitness for duty, a flight crew member is entitled to a maximum of four occasions or seven days of sick leave commencing from 20 August in each year. However, if a flight crew member reports sick on the same day that he or she is contacted for duty or on the following day, the Company may require the flight crew member to produce a medical certificate or other evidence of unfitness for duty.

(e) Any patterns affected by non-certificated sick leave will be unpaid other than as provided in 31.3.10(a).” (emphasis added)

 

Justice Rares held that the provisions in the certified agreement were not exhaustive of the contractual rights between Qantas and its employees in respect of when or why Qantas could require an employee to undergo a medical examination or provide further information about the employee’s medical condition. Justice Rares implied a term into the employment contract that Qantas may require medical evidence of the kind sought from Mr Kiernan, and require Mr Kiernan to attend a meeting to discuss matters arising from the certified agreement and the Work Health and Safety Act. The implied term is necessary to enable the employer to make its own business arrangements and to adjust for the impact caused by the sickness. Unless there is an express term to the contrary, ordinarily in a contract of employment, each party agrees to do all such things as are necessary on their part to enable the other party to have the benefit of the contract.

While this case did not directly concern the interpretation of the evidentiary provisions in s.107 of the Fair Work Act, it is a good example of the many layers of law that can influence when an employer can request medical evidence.

 

2.      Maritime Union of Australia v DP World Sydney Limited [2014] FWC 2682

This case involved an employee who provided a backdated medical certificate as evidence of an illness. The employee was covered by the DP World Sydney Enterprise Agreement 2011 which included both a personal leave clause (cl.16) and an absence management clause (Appendix 1). The absence management clause provided:

DP World understands that from time to time, Employees are unable to attend work due to illness or injury. In these circumstances, Employees have the right to access their sick leave entitlement provided for under the Agreement provided this is for genuine illness. Employees should be aware however of the impact unplanned absences have on the business and the Company's ability to properly service its customers. For these reasons and to ensure sick leave is used for genuine illness or injury the Company requires Employees to provide the following evidence to substantiate their absences in any of the following circumstances:

(a) 5 days absence in the year may be uncertified;

(b) The 6th uncertified day of absence requires production of a statutory declaration;

(c) Any absence in excess of 6 uncertified days must be accompanied by a medical certificate;

(d) Sick leave absences for each day prior to or following a public holiday must be accompanied by a medical certificate;

(e) Employees who are subject to an Absence Management Plan (AMP) must provide a medical certificate for any absence:

In the cases where medical certificates must be provided as outlined, the certificates will only be accepted in the following circumstances:

(a) Prior to the day of the absence;

(b) On the day of the absence;

(c) On the next rostered shift immediately following the absence (provided certificate is not backdated).

In all these circumstances no backdated medical certificates will be accepted.” [Emphasis added]

 

Commissioner Cambridge held that a backdated medical certificate certifies illness in respect to a period before the date the medical practitioner examined the person and made the certificate. Appendix 1 of the enterprise agreement needed to be reconciled with s.107 of the Fair Work Act which provides any evidence that would satisfy a reasonable person can be provided as evidence of the personal leave. Unilaterally rejecting a backdated medical certificate that deprives an employee of their personal leave entitlements will breach s.107 of the Fair Work Act. This case highlights the risks associated with focusing solely on the provisions of an enterprise agreement in determining employee leave entitlements. Enterprise agreements must be read subject to the sections of the Fair Work Act.

 

3.      Vos Construction and Joinery Pty Ltd re Vos Construction & Joinery Pty Ltd Enterprise Agreement (Construction North) 2013-2016 [2013] FWC 4009

A proposed enterprise agreement contained a notice clause requiring more onerous notice requirements than contained in s.107 when an employee takes personal leave. Commissioner Ryan reiterated that whilst s.107(5) permits enterprise agreements to include terms relating to the kind of evidence an employee must provide to an employer there is no provision in s.107 for enterprise agreements to contain a term with more onerous notice requirements than provided for in s.107(2) of the Fair Work Act.

 

4.      Trustee for the MTGI Trust v Johnston [2016] FCAFC 140

Mr Johnston took annual leave when his wife had an emergency caesarean and his fourth child was born ten weeks premature. He later sought to transfer that leave to personal leave. This lead to his dismissal by his employer. The Full Court of the Federal Court upheld the unfair dismissal decision.

 

Conclusions

1.      Employees

·         You are only entitled to take personal leave under s.97 of the Fair Work Act where an illness or injury means you are not fit to work. Personal leave cannot be used for other reasons. If you need to care for a family member, you may be able to take carer’s leave in accordance with s.97(b) of the Fair Work Act.

·         Familiarize yourself with the evidentiary requirements of the enterprise agreement or award that covers you so you know in advance whether you will need to obtain medical evidence.

·         If you are unsure call human resources at your work and find out what their expectations are. While their expectations may or may not be the correct legal interpretation of the enterprise agreement or award, it is in your best interests to obtain the medical evidence and dispute the requirement later if you wish. You can also call the Fair Work Ombudsman for advice.

·         Keep track of days you take leave without medical evidence. This is particularly important if the enterprise agreement provides that medical evidence must be given after a certain amount of days of personal leave have been taken. Your employer must provide information about the number of days of personal leave you have taken within a reasonable time on request (see s.536 Fair Work Act and reg.3.36 Fair Work Regulations 2009).

 

2.      Employers

·         It may not be reasonable to request medical evidence for personal leave in all situations.

·         Ensure you are familiar with the personal leave provisions in any enterprise agreements or modern awards relating to your employees. In particular, the provisions in an enterprise agreement or modern award must be read in conjunction with the Fair Work Act and the contract of employment.

·         Ensure records are kept of personal leave taken by employees and respond to employee requests for personal leave records in a reasonable time frame.