Medical certificates – when can an employer question an employee’s evidence?

When an employee provides a medical certificate stating the employee is not fit to work, the employer must generally grant the employee personal leave (sick leave) for the relevant period. Section 96 of the Fair Work Act 2009 provides an employee with 10 days of paid personal/carer’s leave for each year of service, accumulating progressively. To take personal leave, the employee must be unfit for work because of a personal illness, or a personal injury effecting them (s.97). A certificate from a medical professional stating the employee is unfit for work must prima facie be taken as evidence, satisfying the requirement under s.97. However, where the employer has a real suspicion the medical certificate is fabricated or that the employee is fit to work, there are some situations in which the employer may be able to challenge the employee’s evidence. I will discuss three situations in this blog post:

1. The employer suspects the medical certificate is fraudulent;
2. The employer suspects the medical certificate has been altered by the employee; and
3. The employer believes that despite a valid medical certificate being produced, the employee was fit to work in the period.

1. Employer suspects medical certificate is fraudulent

In examining a medical certificate, an employer should look to see whether the medical certificate contains basic information such as the information listed in the AMA Guidelines for Medical Practitioners on Certificates Certifying Illness 2011 (revised 2016):

1. Name and address of the doctor issuing the certificate;
2. Name of the patient;
3. Date on which the examination took place;
4. Date on which the certificate was issued; and
5. Date(s) on which the patient is or was unfit for attendance (5.1).

General practitioners are not bound to follow these guidelines and an absence of one of these items does not mean the medical certificate was not validly issued. While the AMA Guidelines state the certificate should be legible and written so that a non-medical person is able to read and understand it and be written on stationery designed specifically for this purpose (5.3), my experience as a legal practitioner is that this guideline is often not followed by doctors. While a medical practice will not provide any information about a patient or a patient’s condition (due to privacy obligations), they will ordinarily be willing to simply confirm whether or not a doctor works at the practice or whether or not a doctor issued the certificate. However, before making such an inquiry, the employer should have real reason to doubt the validity of the medical certificate.

The absence of a doctor’s name or doctor provider number could be sufficient reason to make inquiries. In Tokoda v Westpac Banking Corporation [2012] FWA 1262 Ms Tokoda presented her employer with a medical certificate that did not have the doctor’s provider number on it. The employer then made inquiries with the medical practice and was told that the doctor had not provided the certificate and that the employee had not been present at the medical practice since 2009. After an investigation the employee’s employment was terminated, as Westpac had lost the trust in the employee necessary for her continued employment in the banking industry. The FWC dismissed the unfair dismissal application, taking into account the fact the employee worked in a bank, a position requiring the highest standards of honesty and integrity. The employee was not just dishonest in falsifying the certificate but continued to be dishonest afterwards during the investigation. Note this case is specific to the facts and even where a medical certificate is found to be fraudulent, it should not be seen as a “slam dunk” reason for summary dismissal.

1. Employer suspects medical certificate has been altered by the employee

In Hammond v Australian Red Cross Blood Services – Sydney [2011] FWA 1346, a nurse Ms Hammond brought an unfair dismissal claim against the Australian Red Cross after her employment was terminated following her production of an altered medical certificate.

Ms Hammond sustained a back injury at work and was on reduced duties and restricted hours in the period before producing the altered certificate. She obtained a WorkCover Medical Certificate on 6 September 2010 which cited only one restriction “avoid mobile units”. The medical certificate did not cite the list of restrictions that had been on previous medical certificates. Ms Hammond contacted the medical centre, spoke to the receptionist and asked whether the doctor had wanted all the restrictions included. The receptionist advised her she could put further restrictions on the certificate. Ms Hammond made those changes to the certificate believing the doctor had given her permission to do so. The Australian Red Cross obtained a copy of the medical certificate directly from the medical practice and called Ms Hammond into a meeting without a support person or union official to explain the discrepancies. She explained how she had altered the certificate. The Australian Red Cross summarily dismissed her (albeit with notice).

The FWC found Ms Hammond had been unfairly dismissed as her conduct did not constitute a wilful or deliberate attempt to commit an act striking at the heart of the employment relationship. The reasons the employer provided for dismissal being fraud and corruption and breach of a code of conduct were not sound, defensible or well founded. Ms Hammond was reinstated.

Deputy President Sams found the conduct warranted a warning only. Employers should take note of the following paragraph:

That said, it troubles me to say that I find the conduct of the respondent towards the applicant, from July to September 2010, to be appalling and unacceptable. The respondent’s actions ill behove the standards of behaviour I would expect from any employer; let alone one of the size, functionality and reputation of the Red Cross Blood Service. In my view, the respondent embarked on a deliberate and reprehensible campaign to threaten the applicant’s ongoing employment, based primarily on the grounds of her unfitness to fulfil her pre-injury duties. When it found what it thought to be the perfect grounds for the applicant’s dismissal - her alteration of the 6 September 2010 medical certificate - it pounced on her with speed and gusto, denied her procedural fairness and accused her, without mincing words, of the most serious of conduct, being corruption and fraud. I believe the applicant’s consequent dismissal to be manifestly unjust. On any objective analysis, the applicant’s alteration of a medical certificate was nowhere near what any reasonable person might consider to be corrupt, fraudulent or illegal conduct. This is so, not only because of the nature of the conduct itself, but because of the circumstances surrounding the conduct. That is not to say that the applicant’s alteration of the certificate can be condoned or that she is entirely blameless for what happened. Indeed, she readily admits that she did the wrong thing. But given the following circumstances, the applicant’s conduct warranted no more than a warning, and most certainly not summary dismissal for fraud and corruption.

Employers should be very wary when alleging a medical certificate has been altered. Even where there is clear evidence showing the employee has altered the certificate, it will likely only warrant a warning unless it is done in such a way that is so significant such that it destroys the trust required in the employment relationship.

1. Employer believes that despite a valid medical certificate, the employee was fit to work in the period

In Anderson v Crown Melbourne Ltd [2008] FMCA 152, the Federal Magistrate’s Court upheld an employer’s decision to dismiss an employee after the employee had attended a football game while on sick leave.

Mr Anderson provided his employer Crown Melbourne with a medical certificate from a registered medical practitioner covering 1 September 2007. On 1 September 2007 Mr Anderson had attended the Essendon against West Coast game in Perth. He had obtained the medical certificate from Dr Salter on 27 August 2007 which covered the period of 1 September 2007. He had discussed going to the game with a number of colleagues including his supervisor and had spoken of his intention to obtain a medical certificate for this period (at this time he had already obtained the medical certificate covering 1 September 2007). On 29 August 2007 his supervisor Mr Branson met with him and said that misuse of sick leave will be treated very seriously. Mr Anderson said he would have a medical certificate. Mr Branson responded that he did not see that attending a football match was a legitimate use of sick leave. On 2 September 2007 when Mr Anderson attended work he was called into a meeting where he asserted it was not up to the Crown to question his medical certificate.

Federal Magistrate Burchardt preferred the evidence of Mr Anderson to Dr Salter and found that Mr Anderson had told Dr Salter he wanted to see the game at Subiaco on 1 September 2007 and made it plain this was very important to him. Dr Salter without it even being requested gave him a sick leave certificate for one day to enable him to do so and gave evidence that he formed the view Mr Anderson would be distressed as a football fanatic if he was unable to attend and may find it difficult concentrating at work. Dr Salter conceded that issuing a certificate as he did on 27 August 2007 dated 1 September 2007 was itself inappropriate and improper. Dr Salter had previously had two incidents of difficulties with accuracy in issuing medical certificates. On the two occasions the Medical Practitioners Board of Victoria found Dr Salter was a man of a particularly compassionate nature and had allowed that compassion to overbear his professional judgment.

The Federal Magistrate then considered whether Mr Burchardt had indeed been ill on 1 September 2007. He decided that the evidence showed Mr Anderson was at all time in excellent physical health, was not suffering from depression or other diagnosable medical condition and that despite the medical certificate Mr Anderson was not ill on 1 September 2007 and that the subsequent termination of his employment was not unfair.

While the case was decided under the old Workplace Relations Act 1996 on very unique facts, employees and employers should note the following points:

1. A medical certificate from a qualified medical practitioner within the practitioner's area of expertise is prima facie to be accepted ([80]).
2. It would only be in the most unusual and exceptional circumstances that an employer and/or by inference a Court would not accept the validity of such a certificate ([81]).
3. A court or an employer is not necessarily bound to treat a medical certificate as binding on them where an unusual or exceptional circumstance exists ([79]).

It is a high risk approach to commence investigations merely because the employee was seen “out and about” when they were on sick leave, as the employer will generally not be aware of the exact reason why the employee is unfit for work on the day. If an employee is unfit to work because of a mental illness, it may be beneficial to their treatment to attend social gatherings with family members. A doctor ordinarily will not specify on a medical certificate the condition the employee is suffering from.

Risks

There are risks associated with taking action such as issuing a warning or dismissing an employee including unfair dismissal and adverse action claims. To reduce the risk of a successful adverse action claims, employers should be careful to focus on the medical certificate as evidence and not the employee’s time taken off work. If discrepancies are found, the emphasis should be on the dishonesty and breach of trust arising from the fraudulent/altered medical certificate.

Personal leave is a workplace right under s. 341 of the Fair Work Act and the failure to provide personal leave to which an employee is entitled may constitute adverse action under s. 432(1). However, an employee is only entitled to take personal leave where the employee is not fit for work because of a personal illness or personal injury affecting the employee. An employer must ensure they are able to establish any action taken against an employee was not taken because an employee was exercising their right to personal leave. The onus will be on the employer, as it will be presumed the action was taken because the employee was exercising their right to personal leave unless the employer proves otherwise (s. 361).

Employers should act cautiously when approaching medical certificates and only begin investigations when there is a valid reason to question the medical certificate. A valid reasons to make further inquiries might include where the date on the medical certificate has been obviously erased and altered or where the medical certificate has been issued by a doctor who retired years ago.

Summary

Remember the basics. Medical certificates should prima facie be taken at face value. Before making further inquiries the employer should have a real reason to do so. An employer should only challenge the evidence in a medical certificate issued by a medical professional in “unusual or exceptional circumstances” (Anderson v Crown Melbourne).