'Taking a Sickie' - Can an Employer Challenge an Employee's Medical Certificate?

An employee’s entitlement to ‘sick leave’ known as personal leave is contained in section 96 of the Fair Work Act 2009 (Cth) (FW Act) which proscribes 10 days of paid personal leave which accrues progressively through the year in accordance to the employee’s ordinary hours of work and accumulates from year to year.

Section 97 of the FW Act sets out the circumstances in which paid personal/carers leave can be taken which includes:

1. because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or
2. to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because of:
   1. a personal illness, or personal injury, affecting the member; or
   2. an unexpected emergency affecting the member.

Medical Evidence

Section 107 of the FW Act  allows an employer to request an employee taking personal leave to provide evidence that would satisfy a reasonable person that the leave is being taken for the reasons set out in section 97 above. A medical certificate is the most common form of evidence provided to an employer for the taking of personal leave.

The Australian Medical Association released the Guidelines for Medical Practitioners on Certificates Certifying illness: 2011 which requires a medical certificate to detail:

1. The name and address of the medical practitioner issuing the certificate;
2. The name of the patient;
3. The date on which the certificate was issued; and
4. The dates on which the patient is or was unfit for attendance.

Challenging a Medical Certificate

Circumstances may arise where an employer wishes to challenge a medical certificate. This includes where:

1. The employer has reason to believe the medical certificate may be fraudulently created or altered by an employee;
2. There is evidence suggesting the employee is not medically unwell or injured for the days certified as unfit to attend work as stated in the medical certificate; or
3. Where a medical certificate has been backdated or where the period of unfitness for work commences before the consultation date with the doctor.

If the employer believes the medical certificate is fraudulent, the employer does not need consent from the employee to contact the medical practitioner to confirm that the medical certificate is a true and original medical certificate.

Case law supports that it may be a valid reason to dismiss an employee for providing a fraudulent medical certificate as it evidences a breach of the employee’s duty of honesty.

However, it is a distinct issue where the employer believes the employee on sick leave is fit to attend work where the employer has discovered conflicting evidence, for example:

• Seeing social media activity showing the employee engaging in an activity that would contradict their reported illness or injury;
• Being provided information that suggests the employee was travelling, working or engaging in other activity during the period of illness or injury; or
• In other circumstances where an employer may have reasons to believe that the employee taking sick leave is fit to attend work.

However, an employer cannot simply reject a medical certificate if they do not believe the employee is sick or injured. The onus of proving that the medical certificate is not genuine will be on the employer.

To determine if the medical certificate is for a genuine illness or injury, an employer may:

1. Notify the employee of any reasons they seek to challenge the medical certificate and provide the relevant information in support of this position;
2. Give the employee an opportunity to respond to the challenge;
3. Request the employee’s consent to seek further information or a further opinion from the issuing doctor; and
4. Provide any challenging information the employer may have to the medical practitioner and request that the medical practitioner reconsider the matter.

If the employee refuses to consent to the employer contacting the medical practitioner, the employer may still challenge the medical certificate provided they have objective evidence that would support that the claimed illness or injury during the personal leave was not genuine.

An example of this was seen in Dekort v Johns River Tavern Pty Ltd [2010] FWA 3389 whereby the employee claimed personal leave due to illness on 30 & 31 December 2009 and provided the employer with a medical certificate covering these dates.

The employer saw a photo on Facebook of the relevant employee participating in a New Year’s Eve celebration and the employee was subsequently terminated from their employment for misleading conduct. In considering the unfair dismissal claim, the Court noted that the employee lead no evidence to disprove the fact that they attended the New Years Eve function. In dismissing the employee’s unfair dismissal claim, the Court stated at paragraph 16:

The applicant has failed in the face of clear evidence from the respondent to put any case to meet the assertion of misleading conduct, to explain the inconsistency of his actions, or to refute the evidence of the Respondent. I dismiss the application ….. as one which has no reasonable prospects of success.

Therefore, if an employee provides an ingenuine medical certificate or fraudulent medical certificate, the employer may have a valid reason to terminate an employee for dishonest and/or misleading conduct. Of course, each case will be dependent on its own unique circumstances and it is recommended to seek legal advice in these circumstances.

If you require further information on this topic, please get in contact with one of our employment lawyers.