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).  

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.