Our HR Assured telephone advisory service has had an increasing number of calls in relation to the ability of an employer to challenge an employee’s medical certificate where there is evidence that an employee is taking leave inappropriately.

Picture this… You’ve refused an employee’s request for a period of annual leave, however the employee subsequently calls in sick for the same period, and it is then discovered that the employee has gone interstate to attend an international cricket match.

Or what about a situation when you suspect an employee has altered a medical certificate, potentially to allow them to have more days off?

What would you do!?

Situations like the one outlined about cause headaches for businesses. Not only do businesses need to find (and pay for) replacement employees, but they also experience a reduction in productivity.  In these circumstances, while it is often tempting to discipline the employee, there are a number of risks that must first be considered.

What the Risks?

  • Unfair dismissal claim
  • General protections claim – for taking any adverse action against an employee who has exercised their right to be absent from work when they are unfit for work

What can you do?

Medical certificates from qualified medical practitioners must be accepted as evidence of the employees’ illness and cannot be ignored. [1]

However, where there is evidence of dishonesty on the part of the employee, an employer may challenge a certificate by asking for further information from the treating practitioner (with the employee’s consent), questioning any inconsistencies in certificates, or requesting the employee attend an employer nominated treating practitioner for a second opinion.

You also need to consider, what type of illness is the employee suffering from? Is it a physical injury or is it a mental illness? An employee suffering from a mental illness, such as depression or anxiety, may be unfit to attend work, but may be  fit to do another type of physical activity outside of work, such as travelling interstate, doing physical exercise or even meeting up with family and friends.

If however, you have discovered that your employee has intentionally misled you or provided an altered medical certificate, in order to mitigate the risk of a general protections claim under the Fair Work Act 2009 (Cth), the onus is on the employer to demonstrate any action taken against an employee was not due to the taking of leave (Section 361 Fair Work Act) but rather the dishonesty associated with the leave or for providing a fraudulent medical certificate.

Therefore, as an employer, you must take steps to investigate the alleged dishonesty, collect supporting evidence and give the employee an opportunity to respond to the allegations before making a well-supported decision.

Dismissal however, should only take place in exceptional circumstances, and employers should act cautiously when questioning medical certificates. Remember, you must have a valid reason to question a medical certificate.[2]

For more information on this issue and what this means for you, clients should contact the HR Assured team. If you’d like more information about the benefits of becoming an HR Assured client contact us today for an informal chat.

[1] Anderson v Crown Melbourne Ltd [2008] FMCA 152.

[2] Marshall v Commonwealth of Australia (Represented by the Bureau of Meteorology)[2012] FMCA 1052.