Under the Fair Work Act, an employer may request an employee provide evidence that would satisfy a reasonable person of the employee’s injury or illness, should the employee request payment of personal/carer’s leave. The Explanatory Memorandum to the Fair Work Bill 2009 states that the types of evidence commonly requested include a medical certificate or a statutory declaration, although the Fair Work Act does not specifically limit evidence to these two forms.
Should an employee not produce evidence such as a medical certificate from a registered medical practitioner at the request of the employer, the employee is not entitled to payment for personal leave or compassionate leave.
In some cases, an employee may provide a certificate from a ‘registered health practitioner’ other than a medical practitioner. An employer would need to consider the condition that prevented the employee from attending for work is indeed the practice of the health practitioner who provided the certificate. Examples where it would be difficult for an employer to refuse to recognise a certificate issued by a registered health practitioner may include:-
· A chiropractor in the case of a back injury.
· A dentist in the case of oral surgery or condition.
· A pharmacist in the event that medication may impact their ability to perform their work.
· A physiotherapist should an injury prevent them from performing their role.
· A psychologist in relation to mental health condition.
If an employee applies for carer’s leave, the employee may provide evidence by way of a statutory declaration, a letter from the family member confirming the visits by the employee or a medical practitioner certificate verifying the requirement of the employee to provide care/support for their patient. Only the doctor treating the patient can issue a carer’s certificate, with the permission of the patient. It is not however, the doctor’s responsibility to determine who may qualify as a carer.
Whilst the production of a statutory declaration may be deemed reasonable for a single absence of an employee who applies for paid personal/carers leave for illness or injury, the continued production of a statutory declaration for a pattern or regular absences, may be deemed unreasonable and the employer may request evidence by a medical practitioner for absences in relation to illness or injury.
It is also important to understand the applicable modern award for the employee to determine if the award provides a definition of the type of evidence that would be reasonable in the circumstances, however clarification within awards is uncommon.
The production of a medical certificate is generally regarded as irrefutable proof of the employee’s absence for illness or injury however for an employer to challenge the medical certificate’s accuracy, an employer would need to either obtain a second medical opinion that contradicts the original medical opinion, or confront the employee with evidence of activities that contradict the medical certificate or statutory declaration. The onus of proof to refute a medical certificate will fall upon the employer.
Medical certificates are legal documents and should a medical practitioner deliberately issue a false, misleading or inaccurate certificate, they may face disciplinary action under the Health Practitioner Regulation National law. The medical practitioner may also face civil or criminal legal action. The Australian Medical Associations Guidelines for Medical Practitioners on Certificates Certifying Illness – 2011 states that certificates must be dated on the day on which they are written and under no circumstances can this be breached. Some medical conditions may enable the medical practitioner to certify that a period of illness occurred prior to the date of examination. It further states that medical practitioners need to give careful consideration of the circumstances before issuing a certificate certifying a period of illness prior to the date of examination, particularly in relation to patients with a minor short illness which is not demonstrable on the date of examination and add supplementary remarks, were appropriate, to explain any discrepancy. This means that whilst backdated certificates would breach the Australian Medical Association’s guidelines, there are circumstances where a medical practitioner can issue a medical certificate certifying a condition prior to the date of examination.
The Australian Medical Association Guidelines for Medical Practitioners on Certificates Certifying Illness states that certificates contain the following:-
- Name and address of the medical practitioner issuing the certificate.
- Name of the patient.
- Date on which the examination took place.
- Date on which the certificate was issued.
- Date(s) on which the patient is or was unfit for attendance.
- Supplementary information of assistance to the patient in obtaining the appropriate leave especially where there is a discrepancy in the period for which the certificate is issued and the date of the certificate.
A diagnosis is not usually required. The certificate should be legible and written so that a non-medical person is able to read and understand it, eg avoiding unnecessary abbreviations and medical jargon.
The employer may request further information from the medical practitioner who issued the certificate in certain circumstances. Such circumstances may include:-
- OHS considerations as part of the employer’s implied duty of care for his or her employees
- To determine the certificate details ie., determine if it is fraudulent in any way.
- The employer should not expect to see a diagnosis on the certificate.
Under the Australian Medical Association Guidelines, medical certificates should not be provided in the following situations: -
· A doctor believes there is insufficient evidence of disability.
· Wherever possible, doctors should avoid issuing sickness certificates to anyone with whom they have a close personal relationship.
Information in HR Advice Online guides and blog posts is meant purely for educational discussion of human resources issues. It contains only general information about human resources matters and due to factors such as government legislation changes, may not be up-to-date at the time of reading. It is not legal advice and should not be treated as such.