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:
- The employer suspects the medical certificate is fraudulent;
- The employer suspects the medical certificate has been altered by the employee; and
- The employer believes that despite a valid medical certificate being produced, the employee was fit to work in the period.
- 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):
- Name and address of the doctor issuing the certificate;
- Name of the patient;
- Date on which the examination took place;
- Date on which the certificate was issued; and
- 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.
- 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.
- 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:
- A medical certificate from a qualified medical practitioner within the practitioner's area of expertise is prima facie to be accepted ([80]).
- 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]).
- 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).