Absenteeism costs the Australian economy more than $33 billion each year in payroll and lost productivity, according to a 2014 Direct Health Solutions survey.[1]

With the cold and flu season upon us, it is important to clarify the rights of an employer when an employee calls in sick. 

When approaching the issue of sick leave, employers need to be mindful of:

  • ensuring that their workers' safety is not put at risk by working with an employee who is unfit to return to work (despite a seemingly positive medical certificate); and
  • maintaining a high-morale work environment, where the workforce believes management is not being unduly accommodating by accepting medical certificates in questionable circumstances.

Decisions handed down in the Federal Circuit Court (formerly the Federal Magistrates Court) have somewhat clarified the parameters around when an employer can act on legitimate concerns about an employee's medical certificate, outlining that only the "most unusual and exceptional circumstances" allow employers to disregard medical certificates.

Statutory background

Under the Fair Work Act 2009 (Cth) (FW Act), an employee can take sick leave if they are not "fit for duties" due to personal illness or injury.[2] However, this entitlement is qualified, as employees must comply with the notice and evidence requirements contained in s107 of the FW Act. 

An employee is required to provide their employer with notice "as soon as practicable",[3] which may be after the sick leave has begun, and they should also include a prediction of how long they will be on leave. Importantly, under s107(3) an employer can request that the employee provide evidence which would satisfy a reasonable person that the leave has been taken because the employee is unfit for their duties, otherwise the employee is not entitled to the leave. 

The Explanatory Memorandum of the Fair Work Bill 2008 (Cth) says that while it may not be reasonable to request a medical certificate every time, the freedom exists for cases of longer periods of leave or repeated absences surrounding public holidays or birthdays.[4]

Cases 

Anderson v Crown Melbourne Pty Ltd [2008] FMCA 152

An ardent football follower and Crown Casino employee, Mr Anderson obtained a medical certificate to cover his absence from a shift that coincided with Kevin Sheedy's last AFL game as Essendon's coach in Perth. The certificate in question was obtained after Mr Anderson procured tickets to the game and return flights from Melbourne to Perth. Mr Anderson's employer became aware, in the days leading up to the match, of his intention to use the certificate to facilitate sick leave instead of taking other forms of leave and advised him against it, emphasising that misuse of sick leave was considered misconduct. The employee was advised to take annual leave for the trip or swap his shift with a colleague. 

Mr Anderson instead pressed how important attending the game was to him, asserting that his employer had no right to question the medical certificate provided. After failing to attend his rostered shift, Mr Anderson was suspended and later dismissed. 

Mr Anderson commenced unlawful dismissal proceedings, claiming he was dismissed because of his temporary absence from duties due to illness, which was supported by his medical certificate. On the other hand, his employer resolved that it was entitled to treat the medical certificate as unsatisfactory and disregard it. While all other facts were agreed upon between the parties, the evidence of Mr Anderson's doctor was called into question.

The court accepted Mr Anderson's evidence that he visited the medical practitioner and was given a medical certificate after explaining how badly he wished to attend the game. Mr Anderson outlined that no real diagnosis or investigation into his health took place to verify that he was unfit for work duties. 

His claim for unfair dismissal was rejected by the court, upholding the employer's decision to terminate him due to misconduct. It was deemed that the unique circumstances surrounding the dismissal allowed his employer to treat the certificate as invalid.

The court found that Mr Anderson was steadfast in his resolution to attend the game, regardless of the warning given by his supervisors, and he had informed all concerned that he was going to get a medical certificate to validate this position, which was deemed misconduct.

Marshall v Commonwealth of Australia (Represented by the Bureau of Meteorology) [2012] FMCA 152

A different outcome was reached for Mr Marshall, who was employed by the Bureau of Meteorology as a relief weather observer. Mr Marshall obtained a legitimate medical certificate from his regular general practitioner. He was deemed unfit for work and was precluded from his duties for two months. During this time, he was approached to be a contestant on the reality television program Beauty and the Geek, through which he declared he was of good health. 

Mr Marshall had suffered for some time with adjustment disorders and other stress-related symptoms. His doctor (informed by the diagnosis of Mr Marshall's regular attending psychologist) formed the opinion that his condition was deteriorating as a result of the bureau moving his position from Victoria to Queensland and varying his duties to be administrative. 

His doctor believed that Mr Marshall was of sufficient health to participate in the TV show, that it may even improve his symptoms, but he retained the view that Mr Marshall was unfit for work-related duties. The doctor communicated this to the bureau in detailed medical certificates. 

The bureau dismissed Mr Marshall, claiming he failed to provide adequate medical evidence and for taking sick leave over the period he planned to be a contestant on the TV show. The bureau sought to rely on Anderson, purporting that a medical assessment (conducted by a government medical practitioner a month previously) held Mr Marshall fit for duties. In doing so, the bureau believed it could disregard Mr Marshall's medical certificate because of the "surrounding circumstances".

Mr Marshall brought a claim for adverse action, which was upheld by the court. It was determined that the circumstances bore no similarity to the "peculiar set of facts" established in Anderson. The court believed that the doctor, having treated Mr Marshall for several years, honestly provided the medical certificates. The court did not find that Mr Marshall had misled either of his doctors into believing he was sick. The bureau was ordered to reinstate Mr Marshall and reimburse him for any loss.

What does this mean for employers?

Ultimately, legal advisers and employers generally should act with extreme caution before rejecting the validity of any medical certificate (whether positive or negative) presented by an employee from a qualified medical practitioner. 

As well as the FW Act, there may be other legislation that employers will need to consider including the Workers' Compensation and Rehabilitation Act 2003 (Qld) and the Industrial Relations Act 1999 (Qld). As a rule of thumb, employers would only be entitled to reject the validity of the certificate in the "most unusual and exceptional circumstances".

When an employee purports to take extended periods of sick leave, and an employer is uncertain as to the reasoning or length of leave, then the employer is likely permitted to carefully request further medical explanation.

Risks

Employers should take note of the various risks of erroneously rejecting any medical evidence and dismissing an employee. Poorly advised employers, who cannot demonstrate reasonable management action, open themselves to possible claims of bullying, adverse action[5] including discrimination,[6] workers' compensation, and they may be ordered to reinstate employees and recompense any losses.

A further complication (but an essential compliance check for any employer) is the contents and requirements of the employee's contract of employment and the enterprise bargaining agreement and/or award in place.

To minimise any form of workplace disruption, firms should develop a prudent and principled system to check that medical certificates presented by employees are appropriate. Need it be said that informed legal advice is absolutely critical in a heavily contested area of law.

This article was originally published in the August issue of Proctor. 

We would like to acknowledge the contribution of Emily Smith to this article.