Q. We have an employee who applied for three weeks’ annual leave several months ago which was refused due to operational requirements. The employee has subsequently been absent claiming personal leave for the period originally requested as annual leave. The employee has contacted his immediate supervisor and claims to have a medical certificate covering the absence. The supervisor suspects the employee is overseas on a holiday, as do his work colleagues. If the employee does produce a medical certificate, can the company challenge its validity or must it be accepted as irrefutable proof of the employee’s claimed illness? 

A. To successfully challenge the medical certificate’s accuracy in this case, the employer would need to confront the employee with evidence of the activities that contradicts the medical certificate. The onus is on the employer to produce evidence that refutes the accuracy of the medical certificate. Another employee’s hearsay would not amount to reasonable evidence, unless more substantial evidence is forthcoming which proves the employee was overseas during the claimed period.   

Production of a medical certificate is generally regarded as irrefutable proof that the employee was unfit for work because of the stated illness or injury. 

It should be noted the employee has a number of statutory protections under the Fair Work Act. These include unfair dismissal and action under general protections which relates to the employee exercising a workplace right (personal/carer’s leave) or dismissal due to a temporary absence from work due to illness or injury. The onus of proof in a general protections claim lies with the employer. 
 

AMA Guidelines 

The AMA Guidelines for Medical Practitioners on Certificates Certifying Illness 2011: Revised 2016 states 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 (such as an employer) contacts the doctor to verify the veracity of a medical certificate (eg., to determine if it is fraudulent in any way), 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 express consent.” 
 

Carer’s certificates 

The AMA Guidelines also provides the following requirements in relation to the issuing of a carer’s certificate: 

  • a carer’s certificate may be required by a third party where an individual needs to take time away from a particular activity to care for the patient (often an immediate family member) who is sick or injured. 

  • only the patient’s treating doctor should issue a carer’s certificate. 

  • the treating doctor has a responsibility to ensure that the patient requires or required care by the carer but it is not the treating doctor’s responsibility to determine who may qualify as a carer.  


Case law 

There have been instances before industrial courts and tribunals where the employer has successfully challenged a medical certificate which was used by the employee as evidence in respect of an absence from work due to personal illness, thereby ultimately justified the dismissal on the grounds of serious misconduct.  

An employee who produced a medical certificate as proof of illness was not dismissed unlawfully because of temporary absence from work due to illness when the employer discovered he attended a football match on that day. See Anderson v Crown Melbourne Ltd [2008] FMCA 152 (3 March 2008). 

The (then) Australian Industrial Relations Commission found that an employee who manually altered the medical certificate to claim additional sick leave, was dismissed by the employer, was guilty of misconduct and amounted to a serious breach of an employee’s duty of honesty and constitutes a valid reason for dismissal. See Tina Louise Sulis v Woolworths Limited [2009] AIRC 791; (29 September 2009). 

An employee, who had a plausible reason for the alteration of a medical certificate, and the employer did not carry out a proper investigation of the facts, was deemed to have been dismissed unfairly. The issue of the medical certificate was used by the employer as a pretext to dismissal because the employee had been on light duties. See Hammond v Australian Red Cross Blood Service - Sydney [2011] FWA 1346 (4 April 2011). 

An employer who dismissed an employee who presented a false medical certificate in claiming one week of personal/carer’s leave was deemed to have a valid reason for the dismissal. The employee’s manager checked the surgery and was informed the doctor had neither seen the employee nor provided the medical certificate. The employee’s employment was terminated because her dishonest and fraudulent conduct had breached the bank’s standards according to its code of conduct.  
 
The employer had notified the employee of the reason for the termination and had given the employee an opportunity to respond to it. (Then) Fair Work Australia was satisfied that the employer had no option but to terminate the employment because it had lost its trust in the employee because of her dishonesty. See Tokoda v Westpac Banking Corporation [2012] FWA 1262 (14 February 2012). 

An employee who altered a medical certificate so she could return to work sooner than a doctor ordered has been fairly dismissed for serious misconduct. The Fair Work Commission concluded that the chef had engaged in misconduct by falsifying the medical certificate, even though it had caused the employer no harm and given herself no advantage. Altering a medical certificate could undermine an employer’s confidence in such important documents. The employer had a valid reason for dismissing her. See J v Alpha Flight Services Pty Ltd [2016] FWC 4259 (18 July 2016) 
 

Bottom line 

While a medical certificate is generally regarded as irrefutable proof of an employee’s illness or injury the employer may challenge the validity of a medical certificate where there is sufficient objective proof which contradicts the certificate.