19 June Irrefutable proof? Challenging a medical certificate June 19, 2018 By Reef Admin Fair Work Act 0 Can the validity of a medical certificate be challenged? Or is it irrefutable proof of the reason for an employee's absence? We all know how it goes. You refuse an employee’s request to take annual leave because of operational requirements. The employee then takes time off, claiming sick leave for the period originally requested as annual leave. You strongly doubt they were in fact sick and suspect they were basking in the sun on the leave you originally denied – but they have a medical certificate to cover the period. What can you do? Evidence to challenge Production of a medical certificate is generally regarded as irrefutable proof that an employee was unfit for work due to the stated illness or injury. So challenging the certificate is a very hard thing to do – even if you have serious doubts about the genuineness of the employee’s illness or injury. To successfully challenge the accuracy of a medical certificate, you need to confront the employee with evidence of the activities contradicting the medical certificate. The onus is on the employer to produce evidence refuting the certificate’s accuracy. Hearsay from another employee does not amount to reasonable evidence. More substantial evidence is needed to prove the employee was undertaking activities inconsistent with the medical certificate. As an employer, you need to keep in mind that an employee has a number of statutory protections under the Fair Work Act 2009. These include protection against being dismissed due to temporary absence from work due to illness or injury. AMA guidelines The guidelines issued by the Australian Medical Association state that the usual requirements for a medical certificate are: 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 work. Guideline 2.4 states that “where a third party (e.g. the employer) contacts the doctor to verify the veracity of a medical certificate, the doctor should verify the third party’s identity, ask for a copy of the certificate and confirm the veracity of the certificate. The doctor should not provide any other information about the patient without the patient’s consent.” Successful challenges That said, there have been cases before industrial tribunals where employers have successfully challenged medical certificates. In one notable case, it was found that an employee who produced a medical certificate as proof of illness was not unfairly dismissed, as there was proof he attended a football match on the that day. In another case, an employer who dismissed an employee who presented a false medical certificate to claim one week of sick leave, was deemed to have a valid reason for dismissal. The employer checked with the surgery and was informed the doctor had neither seen the employee, nor provided the certificate. Finally, in a case in which REEF recently acted for a member, an employee’s absence due to injured foot (which was accompanied by a medical certificate) was challenged on the basis there was photographic evidence on Instagram of her attendance at a rock concert – moon boot and all! Give REEF a call If you have doubts about the veracity of an employee’s medical certificate, speak with a REEF Workplace Relations Advisor by calling 1300 616 170. We can advise you about any potential challenge. Related Medical certificates and personal leave policies Can a personal leave policy insist that employees provide a medical certificate as proof of illness or injury? And if it does, is the policy compliant with the Fair Work Act 2009 and modern awards? Challenging an employee's post-employment conduct Before challenging a former employee's post-employment conduct, you have to be sure your own house is in order. One employer found out the hard way. Notifying NSW Fair Trading about change of employment Do you know what your obligations are when it comes to notifying NSW Fair Trading about an employee joining or leaving your agency? We asked the regulator for clarification. Doctor, give me the news: Employee entitlement to personal/carer's leave It’s not uncommon for an employee to ask for a few hours off to visit their GP or attend a specialist medical appointment. They’re not sick, but there’s something they need attended to. Are they entitled to personal/carer’s leave? Ask an expert: Suspending an employee without pay What if an employee has failed to complete their CPD or renew their Certificate of Registration? Can you suspend them without pay? REEF Workplace Relations Director Michele O'Neill explains. Taking a pregnant pause: Unlawful termination due to pregnancy A recent court decision found that a real estate agency unlawfully terminated an employee on the final day of her probation period because she was pregnant and had taken personal and annual leave. Comments are closed.