By TCCI Senior Workplace Relations Consultant Abbey George
Winter is here and no doubt employers will see an increase in staff being unfit for work.
It’s always a tricky area for employers to balance up the need for privacy on the part of the employee and the business’ needs.
The Fair Work Act at section 107 specified what evidence is required when employees are taking paid personal leave – that is, evidence that would satisfy a reasonable person. Employers may already have a policy on what evidence is required (and if not we strongly recommend that you get one). If you don’t then it can leave you in a tricky position when it comes to personal leave because if you are not consistent with the evidence you request then you open yourself up to the risk of discrimination.
What would satisfy a reasonable person depends on the circumstances and you should obtain advice accordingly. A common form of evidence is a medical certificate, which is documentary proof of illness from a registered medical practitioner and states the employee will be/was unfit for work. Medical certificates may also be from a registered health practitioner (chiropractor, dentist, osteopath, pharmacist, physiotherapist, or psychologist) but the certificate should relate to their area of expertise.
The Australian Medical Association Guidelines for Medical Practitioners states that the usual requirements for a medical certificate are:
- Name/address of medical practitioner;
- Name of patient;
- Date examination took place;
- Date certificate was issued;
- Date (s) patient was unfit for attendance;
- Supplementary information (if required i.e. discrepancy/delay in dates etc.); and
- Must be legible.
Employers have also seen an increase in the production of Pharmacist certificates. The Pharmacy Guild of Australia states that a pharmacist can provide a certificate as evidence that would satisfy a reasonable person of an employee’s illness or injury. However, the Guild strongly recommends that pharmacists limit the provision of certificates for absence from work to their area of practice and expertise, which is primarily:
- the supply, compounding or dispensing of medicines;
- the provision of professional pharmacy services, including advice on minor conditions and the effective and safe use of medicines; and
- in circumstances where they can reasonably form a view as to an employee’s fitness for work, or as to the illness or injury of the member of the household or the immediate family.
So, while medical certificates are generally regarded as irrefutable proof that the employee was legitimately absent from work because of the stated illness or injury, there are some instances where they can be challenged by an employer. Such examples include where the employer has:
- A second medical opinion contradicting the original medical opinion; or
- Objective evidence that contradicts the medical certificate – i.e. photos from social media that show the employee is not incapacitated or where medical certificates have been created or altered by the employee to name a few.
In a nutshell if you are unsure about whether you can ask for evidence of illness or injury, or if you are unsure about the evidence you have been provided with, ask!
You can contact TCCI by contacting the Helpline on 1300 765 123 or the TCCI on 1300 59 122 or firstname.lastname@example.org where we can assist with your questions about personal leave, or employment matters generally, as well as assisting with drafting any policies or procedures required within your business.