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).  

Secondments – Can an employee choose not to go on secondment? Can sending an employee on secondment constitute adverse action?

Introduction

Secondments are arrangements where an employee is temporarily transferred to work in another office (internal secondment) or for a different legal entity (external secondment). While working for the host, the secondee will remain employed by their employer.

Secondments in the legal industry are very common. Lawyers working at large commercial law firms are often sent on short term secondments to work in-house for a client. There are a number of benefits that flow from this arrangement. The client gets specialty legal advice and the seconded lawyer can help upskill the client’s staff on basic legal matters. In return the seconded lawyer builds connections with the client and hopes to obtain further work with the client when they return from secondment. The seconded lawyer continues to be employed and paid by the law firm. The law firm will have a separate agreement with the client as to how much the client pays for the secondment. Ordinarily this rate will be the lawyer’s wages plus a fee the law firm takes for providing the services.

Ordinarily a secondment is a great short term professional development opportunity for the employee concerned. However, there are some situations where an employee may not welcome a secondment, such as where the employee is concerned about relocating to another location, that the placement will involve deskilling, would make performance management difficult or would involve a significant amount of new training. In these situations, is an employee able to refuse to go on secondment?

Can an employee refuse to go on a secondment?

Lawful employer directions

Generally speaking if an employee is directed to go on secondment by their employer and this direction is a "lawful direction" then the employee must go on the secondment. A lawful direction is one which relates to the subject matter of the employee’s employment, involves no illegality and is reasonable (see Dixon J in R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday (1938) 60 CLR 601 – this case concerned a provision of an award but the provision adopted the common law test for a lawful direction).

Generally speaking it will not matter that the work completed on secondment is not interesting or that there is not enough work for a secondee. There is no common law right for an employee to be provided with work or meaningful work (note this common law position may be altered by an applicable enterprise agreement, contract of employment, or other workplace instrument).

It is important to note that an employee does not have to comply with a direction that is unlawful. Therefore if a direction to go on secondment breaches an employer’s obligation under the Fair Work Act 2009 (Fair Work Act), the employee does not have to comply with the direction. Employees should be particularly alert if the secondment occurs at the same time as a significant change within their employer’s organisations such as a new outsourcing arrangement or a merger.

Can sending an employee on a secondment be adverse action?

In the recent case of McJannet v Special Broadcasting Services Corporation t/as SBS Corporation [2016] FCCA 2937 the Federal Circuit Court considered whether sending an employee on secondment can constitute adverse action.

Ms McJannet was employed by SBS as a Presentation Coordinator Supervisor within the Technology and Distribution Division. She had worked for SBS since 1982. In late 2014 SBS entered into an agreement to outsource its playout operations to Deluxe Australia Pty Ltd. As a consequence of the outsourcing:

A number of SBS employees of the T&D division (excluding Ms McJannet and some others) were offered and accepted employment with Deluxe; and


SBS decided to retain Ms McJannet and a number of other members of the T&D division as employees. Ms McJannet was then directed to go on secondment with Deluxe in order to perform the requirements of her position.

Ms McJannet took a period of leave, resigned on 14 March 2016, and did not go on the secondment. Despite her resignation SBS encouraged her to reconsider her resignation and recommence employment but she did not take up this offer and her employment with SBS ceased.

Ms McJannet alleged a number of contraventions of the Fair Work Act and her contract of employment. Relevantly for this blog post, Ms McJannet claimed adverse action had occurred under s.340 of the Fair Work Act when SBS decided to require her to undertake a secondment (or otherwise resign) and not pay her redundancy. Section 340 of the FW Act provides that a person must not take adverse action against another employee because the other person has a workplace right (etc) to prevent the exercise of a workplace right by the other person. Ms McJannet claimed she had a right to redundancy payout. Adverse action is defined in s.342 of the Fair Work Act. Adverse action is taken by an employer against an employee if the employer injures the employee in his or her employment (s.342(1) Item 1(b)) or alters the position of the employee to the employee’s prejudice (s.342(1) Item 1(c)). SBS submitted that adverse action had not occurred as there was no "injury" or prejudicial alteration to her position, and she was not entitled to a redundancy payment.

Judge Altobelli found there was no adverse action. Ms McJannet was never in scope to be offered employment with Deluxe and was never offered a financial settlement as a consequence of the outsourcing. Judge Altobelli found the proposed secondment did not require the functions of Ms McJannet’s position to be transferred to another location and therefore she was not eligible for a redundancy under the relevant clause of the enterprise agreement. Ms McJannet was directed to go on secondment to Deluxe and was not offered resignation as an alternative.

Ms McJannet was particularly concerned about being sent on secondment because she believed it would involve deskilling, make performance management difficult, involve a new work location, involve new training, and raise problems with her supervising team located physically apart from her. Judge Altobelli found that no aspect of the secondment would have altered the position of the applicant to her prejudice and that there was no adverse action. 

 

Summary

Ordinarily, if an employee is directed to go on secondment by their employer and the direction is a lawful direction, the employee will have to go on the secondment regardless of whether the employee has to change physical work location or whether the employee will be getting challenging or interesting work. Employees should look out for any additional factors that may affect their employer’s power to send them on a secondment, such as a Secondment Policy or relevant provisions of an enterprise agreement.

It is possible that requiring an employee to go on secondment may constitute adverse action in certain factual circumstances. However, the case of McJannet v Special Broadcasting Services Corporation t/as SBS Corporation [2016] FCCA 2937 indicates that it will be difficult to establish that being sent on secondment "alters the position of the employee to the employee’s prejudice" or "injures the employee in his or her employment" under s.342 of the Fair Work Act. 

 

For further reading I recommend the case of Westpac Banking Corporation v Wittenberg [2016] FCAFC 33 which involves complicated legal issues arising from five secondments that occurred during the merger of St George Bank with Westpac Banking Corporation. You may also wish to read Swiegers v Commonwealth Scientific and Industrial Research Organisation [2015] NSWDC, a decision concerning the employer’s failure to provide a role for the secondee when the secondee returned to the employer from secondment.

Work Christmas parties – lessons from the 2015 Christmas season

Christmas season is here again meaning there will be a string of work Christmas parties and functions for employees to attend. In December last year I wrote about Keenan v Leighton BoralAmey NSW Pty Ltd[2015] FWC 3156, a complicated unfair dismissal case resulting from an employee’s inappropriate behavior both before and after a work Christmas function in 2014. There still appears to be a need to educate employees about behavior at work Christmas functions, as the wave of unfair dismissal cases resulting from work Christmas parties continues. In this blog post I will summarize the case of McDaid v Future Engineering and Communication Pty Ltd [2016] FWC 343.

Key principles

A work Christmas party is a work event, meaning the employer’s policies and codes of conduct will generally apply to employees at work Christmas parties. Behavior management and disciplinary processes for breach of a policy or code of conduct will be the same for behavior at a work Christmas party as for behavior during ordinary work hours.  Inappropriate behavior at a work Christmas party can be sufficient reason for dismissal, particularly where the behavior effects the safety and welfare of other employees.

Work Christmas parties ordinarily occur within a set time frame. Behavior that occurs after a work Christmas party has ended at an unofficial after party will not ordinarily be considered behavior that occurred in the course of employment. However, it is still possible for an employee to be dismissed from their employment for conduct that occurs outside the workplace.

McDaid v Future Engineering and Communication Pty Ltd [2016] FWC 343

Facts

Mr McDaid was employed by Future Engineering and Communication Pty Ltd (FEC) as a Project Coordinator. FEC held a staff Christmas event on 19 December 2014 which involved a day of go-karting followed by a Christmas party on FEC premises. FEC provided alcohol, soft drink and food, and did not provide any controls on the amount of alcohol consumed. The party was held in an area where there was a swimming pool. Although the conduct occurred on 19 December 2014 and Mr McDaid’s employment was terminated on 17 March 2015, and an application for unfair dismissal must be made within 21 days, a decision was not made until 2016 due to unsuccessful attempts at conciliation.

Mr McDaid had a history of behaving in an aggressive manner towards other employees in the workplace. He attended the go-karting event and then quickly became intoxicated at the Christmas party. He was aggressive towards Mr Sinna, a Design Engineer at FEC and pushed him several times in the chest. Mr Davies, FEC’s General Manager, intervened at one point and told Mr McDaid he should go home. After a short period, Mr McDaid continued to harangue Mr Sinna, became physically aggressive towards Mr Sinna and threw Mr Sinna into the swimming pool fully clothed.

Mr Davies approached Mr McDaid and told him to leave the premises. Mr McDaid then pushed Mr Davies twice, on the second occasion with such force that Mr Davies was propelled backward, hit the front gate of the premises and suffered some minor injuries. After Mr McDaid helped Mr Davies to his feet the two men started to exchange blows until Mr Davies hit Mr McDaid on the side of the head.

Mr McDaid’s employment with FEC was terminated on 17 March 2016 for reason of his behavior at the FEC work Christmas party. Mr McDaid filed an application for unfair dismissal with the Fair Work Commission. Conciliation failed and the matter was heard by Commissioner Williams.

Legal analysis

A national system employee to which the Fair Work Act 2009 (Cth) (Fair Work Act) applies is protected from unfair dismissal if they have served the minimum employment period (6 months or 12 months for small business employers), and if they earn less than the high income threshold (currently $138,900 per year) (see s.382 Fair Work Act). Mr McDaid satisfied this criteria. Section 385 provides that an unfair dismissal will have occurred where:

(a)  the person has been dismissed; and

(b)  the dismissal was harsh, unjust or unreasonable; and

(c)  the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d)  the dismissal was not a case of genuine redundancy.

In Mr McDaid’s case, the issue to be determined was whether the dismissal was harsh, unjust or unreasonable. Section 387 provides eight criteria the FWC must take into account when determining whether a dismissal was harsh, unjust or unreasonable:

1 Whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees)

The three incidents that occurred during the Christmas party were each alone valid reason to dismiss Mr McDaid. Haranguing Mr Sinna, verbally abusing him, pushing him and throwing him in the pool was a valid reason for dismissal. Refusing to leave the property when directed to do so by the General Manager was a valid reason for dismissal. Initiating a fight with Mr Davies, and pushing him into the gate with such force he sustained minor injuries was a valid reason for dismissal.

2. Whether the person was notified of that reason

Mr McDaid was notified FEC was investigating his conduct at the Christmas party. Over a number of meetings between FEC and Mr McDaid in January 2016 and March 2016 it was made clear to Mr McDaid his behavior at the Christmas party was being investigated. After Mr McDaid was terminated on 17 March 2016 he was notified in writing of the reason for his dismissal.

3. Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

Mr McDaid was given numerous opportunities to respond. On the morning meeting held on 17 March 2016 he was given full opportunity to explain himself. At this meeting Mr McDaid read his version of events from a written statement he had prepared. FEC told Mr McDaid his version conflicted with other accounts and that they would respond later that day. Mr McDaid’s employment was terminated later that day on 17 March 2016.

4. Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

Mr McDaid had his support person Mr Horner, a Field Manager at FEC, present at discussions including those held on 17 March 2016, the date of dismissal.

5.  If the dismissal related to unsatisfactory performance by the person--whether the person had been warned about that unsatisfactory performance before the dismissal

The reason for dismissal was conduct at the Christmas party, not unsatisfactory work performance.

6. The degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal and

7. The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

FEC designs, manufactures, and installs communication towers, powerline infrastructure and associated equipment throughout Australia and has about 60 employees. As a medium sized business with no dedicated human resource employees the procedures followed were appropriate.

8. Any other matters that the FWC considers relevant.

The FWC noted Mr McDaid’s history of aggressive behavior towards colleagues in the workplace and that the behavior at the work Christmas party was not an isolated incident. The FWC also noted Mr Davies’ behavior on the night, especially given his role as General Manager. However, the FWC concluded the fight between Mr McDaid and Mr Davies was instigated by Mr McDaid and Mr Davies was therefore acting in self-defence.

Commissioner Williams dismissed the application and held that Mr McDaid was not unfairly dismissed and that this outcome was not surprising given his behavior.

Conclusions

Mr McDaid’s case was fairly clear cut. An employee cannot harass a colleague, throw a colleague into a pool, and start a physical altercation with the General Manager causing injury without expecting consequences. While not all cases are as clear cut, employees should be aware of the kind of conduct at a work Christmas party that may form a reason for dismissal. Instigating fights with colleagues, harassing colleagues, and even failing to leave the premises when directed may constitute valid reasons for dismissal. Employees are reminded that the standard of behavior ordinarily expected in their workplace will be the standard of behavior expected at the work Christmas party.

The consumption of alcohol is not an excuse for poor behavior, even where the alcohol is provided or paid for by the employer. In certain situations an employer may be held responsible for the provision of alcohol such as where a drunk employee falls down stairs. However, alcohol consumption is not accepted as an excuse for bad behavior and certainly not physically violent behavior.

Employers should be aware that the appropriate procedures to follow in conducting an investigation and making a decision to terminate an employee’s conduct will vary depending on factors such as the employer’s size and whether the employer has any human resource capacity. Mr McDaid attended a number of meetings with a support person and was provided with a number of opportunities to respond before the decision to terminate was made.

Please be careful at your work functions this Christmas season and hopefully I won’t have to write another blog post on the same topic next year!

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.

 

Timesheet fraud – is lying about time worked on your timesheet ever ok?

Question: Is lying about time worked on your timesheet ever ok?

Answer: I want to scream at you NO. NO. NO. It is never ok to put incorrect times on your timesheet. Not only is this dishonest (which should be deterrent enough), but there is always the risk your timesheet discrepancies will be sufficient reason to justify immediate termination of your employment. However, instead of lecturing you, I am going to provide examples from case law to highlight how important accurate timesheets are to keeping your job.

The most recent unfair dismissal case on falsified timesheets

Lacase v Neon Group Ltd Ltd [2016] FWC 3058

Mr Lacase worked for Neon Cosmetics, an Australian cosmetics manufacturer, as a Compounding Supervisor. Mr Lacase was dobbed in by a fellow employee who Mr Lacase had told about claiming overtime without actually working the overtime hours. Mr Lacase’s ordinary hours were 7:45am to 3:51am. Mr Lacase had been claiming morning overtime payments of about 1 to 1.5 hours a day, which would put his start time to 6:45 or 6:15am so that in a normal week Mr Lacase would claim 38 normal hours and 6 overtime hours in his time sheets. The company’s Production Planner checked to see whether Mr Lacase was at work at these times by observing whether Mr Lacase’s car was in the staff carpark. It was not. When the allegations were put to Mr Lacase he denied he was lying about time worked on time sheets and that he was not working the overtime he was claiming. His employment was then terminated. Mr Lacase made an unfair dismissal application to the Fair Work Commission within the 21 day limitation period.

Commissioner Wilson decided that the termination was justified and Mr Lacase had not been unfairly dismissed:

·         In deciding on the balance of probabilities whether the alleged misconduct (fabricated timesheets) actually occurred the Commission will take into account whether it is satisfied of the proofs of the conduct and the need for honesty on the part of the applicant during the course of an investigation. Commissioner Wilson found that Mr Lacase had both claimed overtime on timesheets that had not been worked and had not been truthful when allegations were put to him. This is reason for dismissal.

·         Mr Lacase claimed that he worked overtime on various days and then aggregated his claims for overtime payment into a single period. Commissioner Wilson commented that this may be a potential defence where corroborative evidence of the matter is put forward, but Mr Lacase did not put such evidence forward in this situation.

Claiming time where you were actually working on your own business is sufficient reason for summary dismissal

Eghlima and another v Winco Systems Pty Ltd [2012] FWA 10836

Two brothers, David and Hamid, were employed as electricians by Winco Systems. They had worked on a number of projects including at the University of Sydney and the Star City Casino prior to being dismissed. David and Hamid had started their own electricians business without notifying Winco and had been conducting work in direct competition with Winco Systems in the time they had recorded as working for Winco. There were issues with the timesheets David and Hamid had completed in time claimed when the timesheets were compared to objective evidence such as phone, site and toll records and the discrepancies can be explained by time spent working on their own business. Deputy President Sams found the discrepancies “alarming and most disconcerting”. The discrepancies were very large for some projects, with 33 days being claimed for one particular project, but site access records showing David only worked 12 days and Hamid only worked 6 days. Given the evidence, Deputy President Sams found that even if the brothers resignation could be characterised as a dismissal, it would not have been unfair.

What if I am only claiming a little bit extra on my timesheet?

No. No. No. Even small amounts of additional time claimed on a timesheet may form a sufficient reason for dismissal, especially when combined with other conduct, such as if the employee acts deceptively towards an employer when the discrepancy is put to them.

One hour of overtime claimed on timesheet not actually worked – sufficient reason for dismissal
Ferris v Water-It Queensland Pty Ltd T/A Dig It Landscapes Pty Ltd [2013] FWC 7158
Mr Ferris was employed as a leading hand landscape gardener by Water-It. Water-It alleged that Mr Ferris had incorrectly completed his timesheet entry for 13 March 2013, adding an hour of overtime in which he had not worked. The previous day, Mr Ferris has received a reminder that timesheets were to be completed accurately and no overtime was to be performed without prior approval on that particular project and that failure to accurately complete start and finish times could lead to disciplinary action. The timesheet said Mr Ferris finished work at 5:30, but GPS evidence showed he finished work at 4:18 and arrived home at 4:55pm. Mr Ferris did not justify his conduct or seek an opportunity to review the timesheet, diary or other documents in this meeting where the discrepancy was put to him. In the course of the hearing Mr Ferris indicated that he claimed the additional hour in lieu of a call out he attended to later that evening. However, this overtime claim had not received the required prior approval.
 In considering whether there was a valid reason for dismissal relating to Mr Ferris’ conduct, Senior Deputy President Richards noted:
·         Mr Ferris had filled in his timesheet incorrectly despite the previous day being reminded of the importance of accurately completing timesheets and being provided with examples of how to correctly fill out a timesheet;
·         Although Mr Ferris claimed the hour was for a call out he attended later that day, he did not disclose this to his employer when given the opportunity – Mr Ferris did not avail himself of the opportunity to explain his defence. Regardless, the overtime claim had not received prior approval;
·         The 1 hour discrepancy alone was sufficient reason for dismissal when combined with the deceptive manner in which Mr Ferris acted when confronted with the discrepancy and seeking to mislead his employer about the time he arrived home, as the issue of trust and confidence arose when the matter was not openly and honestly explained by Mr Ferris when the employer was making inquiries.