In Australia ‘sickies’ have become part of our identifiable culture. They are joked about with work mates and celebrated within social circles, but for businesses they are a serious problem, impacting both the productivity and profitability of an organisation. With a growing number of questionable medical certificates being used to access sick leave, many employers have been left wondering how they can challenge a falsified medical certificate without legal backlash.
Notice and evidence required for sick leave
The first step is to know your legal rights. Section 107 of the Fair Work Act 2009 (Cth) (Act) sets out the notice and evidence requirements for employees to take personal (sick) leave. It stipulates that an employee must give notice as soon as practicable and advise you as the employer of the expected period of the sick leave.
It also mentions that a person who has given notice of their sick leave must, if required by the employer, provide evidence that would satisfy a reasonable person that the employee (in the case of sick leave) is unfit for work due to an injury or illness. If the employee refuses the request or does not provide evidence, they are not entitled to sick leave.
The evidence provided may either be a statutory declaration or more commonly, a medical certificate. However, the key words in s 107 are “satisfy a reasonable person”. On this basis, if you receive a suspected or obviously falsified medical certificate you are within your rights to refuse to accept the medical certificate on the basis that it does not “satisfy a reasonable person”.
Challenging suspected falsified medical certificates
In such circumstances, you may direct the employee to see a medical practitioner of your choice for a second opinion. Be aware though, that if you insist on this, the cost of the medical appointment is borne by the employer. If the medical practitioner does not issue a medical certificate or is of the opinion the employee is not unfit for work due to an illness or injury the employee:
1. Is not entitled to paid sick leave for that period; and
2. May be issued a show cause letter or performance managed for using a falsified medical certificate.
How to protect yourself from a general protections claim
Notwithstanding the above, if an employer embarked on performance managing an employee for providing a falsified medical certificate, they need to be aware of the possibility of a general protections claims being made by the employee.
Part 3-1 of the Act sets out that an employee has certain workplace rights (such as taking sick leave) and if an employer takes adverse action (such as performance managing or terminating their employment) because the employee has exercised or proposed to exercise their workplace right, the employer is said to have breached the general protections provisions of the Act.
The current penalties for breaches of the FW Act are up to $63,000 for a company and up to $12,600 for a director and key person involved in the contravention.
A case in point
In the decision of Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157, the employee argued that the employer had taken adverse action by terminating his employment because he exercised his workplace right of taking or attempting to take sick leave.
The employer, due to the conduct of the employee prior to the sick leave, suspected if a medical certificate was provided, it would be a falsified medical certificate and as such commenced disciplinary proceedings and ultimately terminated his employment due to the dishonesty.
At the first instance, Justice Collier of the Federal Court dismissed the general protections application as her Honour had determined that, due to the conduct of the employee before taking the personal leave, the decision maker had strong reason to believe the employee was not sick. The decision was appealed to the Full Court of the Federal Court. However, the appeal was dismissed, and the Full Court upheld Justice Colliers’ decision in the first instance.
In summary, you do have a right to challenge a medical certificate, and after a due process is followed, if you determine the employee has been dishonest and provided a falsified medical certificate, in most circumstances, you will have the right to terminate their employment. However, extreme caution ought to be exercised in such circumstances due to the risk of a general protections application being made.
If you believe that your employee has provided you with a falsified medical certificate and you wish to know your options or require assistance we offer an obligation free consultation – please call +61 (07) 3876 5111 to arrange an obligation free consultation to discuss your inquiries and we will do our best to provide a helpful, practical solution.
Written By
Principal
NB Lawyers – Lawyers for Employers
About the Author
Jonathan Mamaril leads a team of handpicked experts in the areas of employment law and commercial law who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability. With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars where his expertise is invaluable as a leader in this area as a lawyer for employers.