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Challenging a sick certificate.

20/08/2010


Its an Australian tradition to “pull a sickie”.  For a single day, it is not usually necessary to obtain medical evidence of illness.  For longer absences, most employees can easily persuade a doctor to provide a medical certificate of unfitness for work.  Understandably, most employers are suspicious about the genuineness of medical certificates.  It begs the question: when can an employer challenge the validity of a medical certificate?

An employer who  suspects the validity of a medical certificate cannot reject it, unless there is good reason to do so. There are few reported decisions where employers have successfully challenged medical certificates.  One such occasion was the decision of the Federal Magistrate Court in Anderson v Crown Melbourne. The employee  was dismissed after taking sick leave to attend a football match.  He produced  a medical certificate stating that he was ill. However, he had previously requested leave to attend that game and had been warned that he would be terminated if he misused sick leave. The employee nevertheless attended the game and produced a medical certificate. Remarkably, it  stated that the employee was “distressed” and might not be able to perform his work to the best of his ability. It was dated five days after it was issued. The Federal Magistrate acknowledged that medical certificates ought be accepted except in the most unusual and exceptional circumstances.    The Court found that the employee’s absence was not due to illness and the dismissal was not unlawful.

However, in a different case, the Australian Industrial Relations Commission found that a medical certificate from an overseas doctor should have been accepted. In Kaur v DHL Exel Supply Chain, the employee soufght annual leave to visit her mother in India.  She booked her flights before her leave was approved. She got leave for a shorter period, but did not reschedule her flights. However, while still overseas, she faxed a medical certificate to her employer that she had acute lumbago.  Although an Australian doctor subsequently supported the diagnosis, the employer argued that a certificate not issued by an Australian doctor should be ignored.  In the absence of any objective reason to doubt the certificate’s accuracy, Senior Deputy President Drake held that it should have been accepted.

Commissioner Smith in the Australian Industrial Commission has considered whether an employer can ask for a statutory declaration to support paid sick leave absence. The employer had evidence showing that, while absent from work, the worker had purchased petrol, used toll roads and made mobile phone calls. Commissioner Smith accepted that medical certificates were notorious for their lack of information. Employers are entitled to establish whether their staff are genuinely sick. In light of evidence which raised legitimate doubt, the employer was entitled to ask for a statutory declaration.

In general, employers should accept medical certificates  at face value. An employer may only seek further proof, reject it or challenge its validity where there is sound evidence to do so.  That will be possible only in very limited number of cases.  And employers must be careful to use due process if they wish to reject the medical evidence.

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