Australia: I am sick ... and that is that! - Managing employee absences

Employees (and their unions) may sometimes hold the belief that an employer may not question their absence from work or challenge their medical certificate. "It's my right to take sick leave", they may exclaim.

A manager may fear challenging this employee, and prefer to not have a difficult conversation. Maybe they have heard an Industrial Commissioner say "[w]here the certificate states that the employee will be absent on a particular date it must be assumed that the doctor found the employee incapable of working on the specified date".i

Employers do have the right to manage absences. To ensure business services are delivered effectively and efficiently, employers must manage resources (including staff) and discharge their legal obligations (including safety) with full and proper information to make the right decisions. Employees are obliged to cooperate.

Dishonesty and misuse ... an obvious basis to challenge

An employer may question absences and medical certificates in cases of suspected forgeryii or misuse. Examples of misuse include employees:

  • undertaking secondary employment whilst allegedly absent for 'viral illness';iii
  • providing a medical certificate but attending a football match instead.iv

But be cautious to not jump to conclusions. An employee unwell for work (due to the anxiety and stress of the workplace) may nevertheless be fit to engage in other activities, such as appearing on the television show 'Beauty & the Geek'.v

A contract to fulfil

Underpinning every relationship is an employment contract, whether written or unwritten. A commitment given by an employee to their employer is to attend work, as agreed, and to perform the duties of employment to the best of their ability, in the best interests of their employer.

Sick leave

Yes, an employee can be given leave from their contractual commitment, if sick. However, two important qualifications need to be made to that broad statement:

  • firstly, sick leave is not an entitlement but a contingent benefit;vi
  • secondly, sick leave is available when the employee is unfit to attend to duties because of illness or injury – that is, they may be ill or injured but still able to work.

The Fair Work Act 2009 and reasonable proof

Sections 97 and 107 of the Fair Work Act 2009 provide that, if an employer requires it, an employee must provide evidence that would satisfy a reasonable person that sick leave is taken because the employee is not fit for work because of a personal illness, or personal injury.

An employee's entitlement to take paid sick leave is contingent on them complying with the evidence requirements.vii What constitutes "reasonable evidence" depends on the circumstances, however generally a medical certificate or statutory declaration should be accepted as appropriate evidence.

Statutory declarations have long been found to be an acceptable alternative to unnecessarily requiring an employee to incur the cost and inconvenience of obtaining a medical certificate, especially in rural areas.viii Equally, statutory declarations to prove absence have been found to be open to misuse by irresponsible employee attitudes.ix

Workplace safety - a fundamental responsibility

An employer has a positive duty to ensure, so far as is reasonably practicable, the safety of employees and others at work. To discharge this duty, an employer needs to be properly informed.

As such, it may be reasonable and necessary for an employer to require an employee (who is certified fit to return to work by their doctor) to undergo an independent examination by a company doctor. This is to ensure that the worker is not exposed to unacceptable levels of risk.x

It is also important to keep in mind that employees have duties under work health and safety legislation. These duties include ensuring that their acts or omissions do not endanger them or others; and that they co-operate and comply with lawful and reasonable directions and policies of their employer.

The common law says

The common law implies into the employment contract a termxi:

...that an employer be able, where necessary, to require an employee to furnish particulars and/or medical evidence affirming the employee's continuing fitness to undertake duties. Likewise, an employer should, where there is a genuine indication of a need for it, also be able to require an employee, on reasonable terms, to attend a medical examination to confirm his or her fitness.

Where an employee does not comply with such requests, it may (depending on the circumstances) provide a valid reason for dismissal.xii

It is okay to (reasonably) ask questions

Yes, it is ok for an employer to ask questions. Indeed, an employer should do all that is reasonably practicable to ask and inform itself on employee absences from work to ensure that there are no work, health and safety risks.

So, when a Qantas captain challenged Qantas questioning his medical certificate and continued absence for mental illness, the Federal Court usefully observedxiii:

An employee's statutory, certified agreement or analogous industrial award based entitlement to take sick leave does not displace the contractual relationship in which, at some point, the employer is entitled to make its own business arrangements to adjust for the impact that the leave caused by the sickness of the employment will have on it and to address its obligations under the Work Health and Safety Act

Of course, there are limits to what can reasonably be asked. If the sick leave absence is not work related, then it is rarely relevant what caused the illness or injury. It may also be unlawful to ask an employee to disclose their disability in circumstances where a person without a disability would not be required to do so.xiv

It is consistent with employer duties of care though to reasonably ask an employee if they can safely perform the inherent requirements of their job. Where there is claimed incapacity, it will be reasonably necessary to ask whether any reasonable adjustments,xv or special services or facilities may be needed,xvi so that the ill or injured employee can return to work safely or to decide if such accommodations would cause unjustifiable hardship to the employer.xvii

Good management means asking the right questions

Whilst not easy, managing absences is an important part of a manager's role. We recommend:

  • engaging with the ill/injured employee early and regularly (but not be harassing);
  • talk to the employee (not just about incapacity but) about their fitness, and what they can safely do;
  • where possible, liaise with them and their doctor, or other occupational health and safety experts, about a safe and healthy return to work (with any reasonable adjustments if necessary); and
  • remember – the end goal is to achieve a timely, functional and safe return to work.

Footnotes

i Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australia Post [2006] AIRC 541 at [124] and [125].

ii Sulis v Woolworths Ltd [2010] FWAFB 145 and Bulzer v Monash University [2017] FWC 2536

iii J Didomizio v Tetra Pak Manufacturing Pty Ltd [2005] AIRC 936

iv Anderson v Crown Melbourne Ltd [2008] FMCA 152

v Marshall v Commonwealth Of Australia (represented by The Bureau Of Meteorology) [2012] FMCA 1052

vi Kenneth Ross Milburn v Capral Aluminum Ltd [2004] NSWIRComm 302, [84] – [85]

vii Trustee for The MTGI Trust v Johnston [2016] FCAFC 140

viii Amalgamated Engineering Union Case (1942) 46 CAR 472

ix Steel Workers Case (No.1) (1962) AR 334 at pp.377 and 278

x Grant v BHP Coal Pty Ltd [2017] FCAFC 42

xi Blackadder v Ramsey Butchering Services Pty Ltd [2002] FCA 603

xii Salat v NSW Police Force [2011] NSWIRComm 1040

xiii Australian and International Pilots Association v Qantas Airways Ltd [2014] FCA 32 at [64]

xiv Section 30, Disability Discrimination Act 1992 (Cth)

xv This is the language used in s 21A(1) of the Disability Discrimination Act 1992 (Cth)

xvi This is the language used in s.49B(4) of the Anti-Discrimination Act 1977 (NSW)

xvii Sections 21A and 21B, Disability Discrimination Act 1992 (Cth); s.49D Anti-Discrimination Act 1977 (NSW)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Cooper Grace Ward
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Cooper Grace Ward
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions