Recent media coverage sparked debate about the taking of "sickies" when an employer discovered an absent employee's Facebook page showing an image of the employee with a quote "..not going to work. **** I'm still trashed. Sickie woo!"1.
Although there is debate about whether the story is actually true, the reports provide a timely reminder of the issues to be considered when there are doubts about an employee's claim for paid sick leave.
What could the employer in the Facebook case have done if the employee provided a medical certificate for the absence?
Entitlement to paid sick leave
All employment contracts include an entitlement to paid sick leave, whether the right is expressed in an employment contract, award, legislation, or otherwise implied by law. The entitlement to paid sick leave recognises that an employee's income should not be affected by illness or injury which inevitably occurs from time to time.
Many written employment contracts require employees to provide a medical certificate after a specified period of absence. This can also arise under an employer's HR policies.
Section 254 of the Workplace Relations Act 1996 (Cth) ("WR Act") permits employers covered by the Act, such as constitutional corporations, to require employees to provide medical certificates or statutory declarations where personal leave is taken as paid sick leave.
For employers not subject to the WR Act, state awards often provide an entitlement to paid sick leave per year subject to the employee providing medical certificates.
Where a medical certificate is provided and there are reasonable grounds for believing it may be fraudulent (not issued by a qualified medical practitioner), an employer should write to the doctor seeking confirmation that the doctor issued the certificate.
Recent unfair and unlawful dismissal cases have highlighted relevant issues for consideration where there is doubt that an employee was genuinely sick.
Football game not a valid reason
Anderson v Crown Melbourne2 involved an unlawful dismissal application alleging that the termination of employment was due to a temporary absence from work due to illness or injury (in breach of s.659(2)(a) of the WR Act).
The employee had taken sick leave to attend a football match and provided a medical certificate in support of his request for paid sick leave. However, the employer was aware from the employee's co-workers that he had attended the football game on the date of the medical certificate.
An important issue in this case was the fact that the employee provided a medical certificate. The treating doctor gave evidence that he had certified the employee unfit for work on the basis that he believed that:
However, the doctor had previously been the subject of disciplinary action for issuing inappropriate certificates.
The Federal Magistrates Court noted:
The Court dismissed the application, finding that the exceptional circumstances of the case entitled the employer to query the truth of the medical certificate.
In the circumstances, the Court found that the employee was not absent due to illness and therefore the termination was not due to the employee's temporary absence due to illness.
Surfing while on sick leave
Bevan v Oceania Aviation Services3 involved an employee who was dismissed for participating in a professional surfing competition during a period of sick leave.
After injuring his back the employee obtained a certificate from an osteopath indicating he was unfit for work. The period covered by the certificate included his weekend shifts. The employee relied on this certificate to advise his employer that he was unable to work on the weekend and would return to work the following Monday.
The employer subsequently became aware that the employee had participated in a professional surfing competition over that weekend and terminated his employment. The employee lodged an unfair dismissal claim (under s.643(1)(a) of the WR Act).
The Australian Industrial Relations Commission ("AIRC") accepted the employer's argument that since it was paying the sick leave it was entitled to look at whether the circumstances of the sick leave application were bona fide.
The AIRC found that the employee's conduct misled the employer as to his physical capabilities and he failed to advise the employer of an improvement in his capabilities. The AIRC upheld the employer's decision to terminate his employment.
Sickie to attend course not unreasonable
Lovett v Pacific National4 also involved an unfair dismissal application (under s.643(1)(a) of the WR Act), in this case by an employee who took a "sickie" to attend an induction course for a new job after being given notice of redundancy.
In considering the employee's unauthorised absence from work the AIRC stated:
The case turned on the fact that prior to taking the unauthorised leave, the employee had applied to his employer for unpaid leave to attend the induction course which the employer had declined.
The AIRC found that the employer's action of declining the employee the opportunity to attend the induction course after it had made the employee's position redundant was unreasonable. The employee's decision to disregard the employer's direction and instead take a "sickie" to attend the induction course was not a valid reason for the termination of his employment in the circumstances.
These recent decisions show that employers must act reasonably and cautiously in disputing an employee's explanation of the reasons for taking sick leave.
Anderson shows that only in exceptional circumstances will courts allow employers to "go behind" a medical certificate relating to an employee's absence from work.
Bevan indicates that if there is a change in the employee's capacity, the employer should be advised. A failure to do so can result in disciplinary action.
Lovett confirms that an employer must have regard to all of the relevant circumstances when considering disciplinary action against an employee who has taken a "sickie".
Whether fact or fiction, the recent Facebook example provides a reminder of the complexities of going behind an employee's claim that he or she was sick.
In that case, without a medical certificate, the employer is likely to have grounds for not accepting that the absence was due to genuine illness. However, if a medical certificate was provided, then it will be difficult not to accept it at face value if it was issued by a qualified medical practitioner.
1 Sydney Morning Herald, 23 October 2008
2 Anderson v Crown Melbourne Limited  FMCA 152
3 Bevan v Oceania Aviation Services Pty Ltd [2008 AIRC 413
4 Lovett v Pacific National(NSW) Pty Limited  AIRC 674
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