The Fair Work Act 2009 provides that an employer can require an employee to provide evidence that supports that they were required to take a period of personal leave because they:
- Were not able to work because of an illness or injury, or
- Were required to provide care or support to an immediate family or household member (because of an illness, injury, or unexpected emergency affecting the member).
Generally, an employer is entitled to ask an employee to provide evidence to confirm their absence on personal leave at any time. However prior to doing so, employers should review their workplace policies and agreements to ensure that they do not contain specific provisions regarding when an employee will need to provide evidence and what type of evidence will be required. An employee who doesn't comply with the requirement to provide their employer with reasonable evidence may not be entitled to payment for their absence on personal leave
Although the Fair Work Act 2009 does not set out strict rules regarding what type of evidence is required by an employee, the evidence does need to be such that would convince a reasonable person that the employee was genuinely entitled to the period of personal leave. Medical certificates or statutory declarations are the most common evidence of illness or injury accepted.
Who can issue a medical certificate?
Medical Certificates are defined by the Fair Work Act 2009 as being a certificate that is signed by a ‘medical practitioner’. The Fair Work Act 2009 further defines a medical practitioner as being
a person who is registered, or licensed, as such, under a law of a State or Territory that provides for the registration or licensing of medical practitioners.
While medical certificates have traditionally been provided by an individual’s treating doctor, employers may find that that are presented with medical certificates that have been issued by alternative registered health practitioners, or potentially pharmacists. This does commonly raise a question from employers as to whether such forms of medical certificates need to be accepted as evidence of the employee’s illness or whether they can insist on a medical certificate being provided by a treating doctor.
The extent to which the medical certificate will be deemed reasonable can depend on the medical registration requirements of the relevant State or Territory for the particular medical professional group. In most instances however it would be difficult for an employer to refuse to recognise or accept a medical certificate that has been issued by a health professional such as (but not limited to) a registered:
although this could depend on the nature of the actual condition that prevented the employee’s attendance at work. For example, a medical certificate could be challenged where the area of practice or expertise of the health provider is not relevant to the employee’s condition (where known). In the case of pharmacists, it is the view of the Pharmacy Guild of Australia that the Fair Work Act 2009 does enable pharmacists to issue medical certificates for short term absences or minor conditions such as a cold.
Can a medical certificate be challenged?
In most circumstances, the production of a medical certificate is generally regarded as being irrefutable proof the employee was legitimately absent from work because of an illness or injury. As the medical industry in Australia is tightly regulated with controls in place regarding matters such as the issuing of medical certificates, the ability of an employer to challenge the validity of a medical certificate is difficult to do. Medical certificates are deemed to be legal documents, and if a medical practitioner is found to have deliberately issued a false or inaccurate certificate, they could face disciplinary action under the Health Practitioner Regulation National law and be personally exposed to legal action.
The process of refuting a medical certificate is one that should be undertaken with care and where the employer has reasonable objective evidence which contradicts the certificate provided and to support their actions. The onus is on the employer to provide reasonable evidence that they genuinely believe refutes the accuracy of the provided certificate or statutory declaration. Where there are concerns held regarding the genuineness of a provided medical certificate, such as a potential forgery of the dates listed, an employer may contact the issuing practitioner for the purposes of verifying the content and validity of the medical certificate.
If you have any questions regarding personal leave, or if you require assistance or HR Advice on any matter, please contact the team at HR Advice Online at [email protected] or on 1300 720 004.
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.