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Medical certificates – when can an employer question them?

Anthony Massaro, Libby Pallot and Abbey Burns

Our Employment team review medical certificates and when an employer can question them.

 

The federal opposition recently made headlines by questioning a medical certificate provided by MP Craig Thomson. The Australian Medical Association (“AMA”) responded strongly with its view that medical certificates are legal documents which should not be questioned by employers.

The Fair Work Act 2009 (Cth) requires an employee who is taking leave because of a personal illness to provide evidence of that illness that would satisfy a reasonable person. Medical certificates are widely accepted as sufficient evidence and are required under some industrial instruments.

The AMA argues that a medical certificate is a legal document and medical practitioners who issue misleading certificates can face disciplinary action as well as civil and criminal legal action. The AMA Guidelines for Medical Practitioners on Certificates Certifying Illness 2011 (“Guidelines”) state that a sickness certificate should include:

  1. the name and address of the medical practitioner issuing the certificate;
  2. the name of the patient;
  3. the date on which the examination took place;
  4. the date on which the certificate was issued;
  5. the date(s) on which the patient is or was unfit for work; and
  6. any additional information which may assist the patient in obtaining the appropriate leave.

A diagnosis is not usually required. The Guidelines state that employers have a responsibility to recognise their employees’ right to privacy and should recognise a medical certificate as sufficient certification that an employee is unfit for work.

However, this does not mean that employers may never question the validity of a medical certificate.

In Anderson v Crown Melbourne Ltd, the Court held that “a medical certificate from a qualified medical practitioner within the practitioner's area of expertise is prima facie to be accepted.” An employer could only reject a medical certificate in exceptional circumstances. The Court considered Mr Anderson’s circumstances to be exceptional, as it was clear from the evidence that the only reason Mr Anderson was not able to attend work was because he was attending an interstate football match.

The recent Fair Work Australia (“FWA”) case Tokoda v Westpac Banking Corporation provides another example of an employer successfully disputing a medical certificate. The employee in this case presented a medical certificate indicating she was unfit for work. As the doctor’s provider number was absent from the certificate, the employer contacted the doctor’s surgery. The doctor commented that he had not provided the medical certificate. After an investigation, the employee was terminated for serious misconduct on the basis that her conduct was dishonest and fraudulent both in creating a false medical certificate and continually denying that fact during the subsequent investigation. As a result, her claim for unfair dismissal failed.

However, irregularities in a medical certificate do not always justify dismissal. In Hammond v Australian Red Cross Blood Service, FWA found that an employee who had amended her own medical certificate at the direction of her doctor’s receptionist had been unfairly dismissed. The Red Cross Blood Service based the termination on allegations of fraud, illegal and unethical behaviour and corruption. FWA reinstated her employment and held that the termination was manifestly unjust because the employee’s alteration of the medical certificate was not corrupt, fraudulent or illegal conduct.

It is clear from the cases that employers can dispute medical certificates in certain circumstances, and that the AMA’s position is slightly overstated. However, employers should act cautiously when questioning a medical certificate.

Russell Kennedy’s Workplace Relations, Employment and Safety team can assist employers with conducting investigations into employee misconduct and the process of fairly dismissing employees.

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