Published 21 April 2022
Businesses report that one of their biggest costs of managing their business is the cost of personal leave. Personal leave is an employee entitlement under the National Employment Standards, but is commonly misused, and this misuse costs the Australian economy millions of dollars each year.
There are steps that all businesses can take to minimise this exposure.
Requesting Information
When employees go on sick leave one question regularly arises: what information may absent workers be required to provide?
Sick leave is an inevitable part of any employment relationship but long periods can disrupt business. Also, legitimate health and safety concerns can arise when a worker goes on extended leave. Sick leave should be managed appropriately with regular communication and follow up.
The Fair Work Act sets out evidentiary requirements for sick leave. It provides that an employer may require evidence that would satisfy a reasonable person that an employee is unfit to carry out their duties (sections 97 and 107(3)). Modern awards, enterprise agreements and workplace policies specify when a medical certificate or a statutory declaration may be required from an employee.
When can more information be required?
While the Fair Work Act provides a test for employers to use it is not clear, on the face of it, what a ‘reasonable person’ would be satisfied with. The following factors should guide employers in determining whether more information may be sought:
- the evidence, if any, that the employee has produced to date;
- the length of service of the employee and their record of sickness;
- whether a timeframe for a return to work has been provided;
- whether there are implications for work health and safety, including concerns that the injury or illness might be work-related; and
- the potential impact of the absence on business considerations such as rosters, training and licensing (see Australian and International Pilots Association v Qantas Airways Ltd [2014] FCA 32 ).
Under the Australian Medical Association’s Guidelines for Medical Practitioners on Certificates Certifying Illness 2011, doctors are not required to provide a diagnosis on a medical certificate. Instead, they may, if they deem it sufficient, simply state that an employee is unfit to attend work for a specified period.
Employers can request further information from an employee’s doctor, but only with the employee’s express consent. If such consent is not provided, and depending on the factors listed above, if there is insufficient information to satisfy a reasonable person, an employer may still require further information from an employee.
An implied contractual term in employment contracts allows employers, depending on circumstances, to request further medical information (see Australian International Pilots Association v Qantas Airways Ltd at [61]-[64]). It is on this basis that employers may, if a reasonable person would not be satisfied that an employee is injured or ill, demand further specific information or instruct an employee to attend an independent medical assessment.
The Fair Work Commission also upheld the dismissal of an employee who failed to provide the employer with information the company needed to assess the employee’s fitness to work safely. In Columbine v The GEO Group Australia Pty Ltd T/A GEO [2014] FWC 6604, the employee provided a medical certificate stating she was fit for work after an administrative role she had been working (under modified duties) was to end. She refused to allow direct communication with her doctor or to agree to an independent medical assessment.
What if it is suspected that an employee is not really sick?
Employers should be cautious about how they handle situations where they suspect an employee is not genuinely injured or unwell. The following steps should be taken:
- Contact the employee to inquire about their injury/illness, the expected period of leave, and to request a medical certificate if one has not been provided.
- If a medical certificate provides insufficient information to allay the reasonable person test, request consent from the employee to contact their doctor.
- If the employee fails to provide consent, consider whether an independent medical assessment is necessary in the circumstances.
- After the above steps are taken, if it can be established that a reasonable person would not be satisfied that the employee was unfit to attend work, disciplinary action, possibly including the termination of employment in serious cases, may be taken.
An example of disciplinary action that was held to be lawful arose in a case heard by the Fair Work Commission where an employee was dismissed for misuse of sick leave. The employee had informed his employer that he would take a day’s sick leave to attend a football match in another city. His employer strongly counselled him not to do so but the employee ignored the warning and subsequently produced a medical certificate for the relevant date which he took as sick leave.
In Anderson v Crown Melbourne Ltd [2008] FMCA 152 the Commission cautioned that the circumstances were highly unusual. The employee claimed to be emotionally unfit to attend work due to the football match taking place. Despite the certificate, the employer maintained that a reasonable person would not have been satisfied that the employee was unfit to attend work. The Fair Work Commission agreed. It also noted that the doctor who issued the medical certificate had previous disciplinary action against him, was a poor witness, and had issued the medical certificate in unsatisfactory circumstances.
The best way to minimise disruption to business as a result of extended periods of sick leave is for employers to consistently require sufficient medical information from all employees. A workplace policy that clearly communicates what is expected when an employee goes on sick leave will greatly assist the appropriate management of this issue.
Preventing and Monitoring Sickies
Whilst requiring an employee to produce a medical certificate for time away from work due to illness can assist in reducing the likelihood of employees ‘chucking a sickie’, most people would agree that it is usually not difficult to get a medical certificate from a doctor, even when a person is perfectly well.
For this reason, it is important for businesses to have mechanisms in place addressing sick leave. This can include a workplace policy as to how sick leave is to be notified and what evidence is required when an employee takes sick leave. It also requires managers to monitor the taking of sick leave and identify any patterns that may be occurring in relation to when an employee is taking sick leave and the reasons as to why.
Some measures that managers and employers can implement to reduce the likelihood of employees taking ‘sickies’ include:
- Require an employee to phone and speak to their manager when they are sick and need to take a day off work. A phone call, as opposed to a text message or email, can lower the chances of an employee chucking a sickie when they know they are required to have a conversation with their manager.
- Consider when an employee will be required to produce a medical certificate for sick leave. Is it for any absence or for periods of two days or longer? Alternatively, a business could require an employee to produce a medical certificate if they are sick before or after a weekend or a public holiday to reduce the temptation to take an extra-long weekend.
- Don’t make it easy for employees to find out their personal leave balance as this can encourage employees to use their accrued leave, even when they are not sick. For example, don’t include accrued personal leave on a payslip.
- Have a comprehensive policy addressing the above issues and setting out the processes involved in employees taking personal leave.
- Attempt to ascertain the reason as to why people may be taking days off work when they are not genuinely sick. For example, are they demotivated at work, do they have too much work, are they involved in a conflict with colleagues which means they don’t want to come to work? Addressing issues which are causing employees to take time off work will go a long way in reducing employee absenteeism.
- Monitor employee’s absences. If a pattern emerges such as an employee is always sick on Mondays or Fridays, consider addressing the issue in an appropriate, procedurally fair manner such as giving notice that future absences on these days will require a medical certificate.
When misusing personal leave can result in disciplinary action
There tends to be an assumption amongst managers that once a medical certificate has been provided by an employee, they cannot question its authenticity or put an allegation to an employee that is suspected of ‘chucking a sickie’. Fortunately for managers who are in this position, this is not the case if there are genuine concerns and supporting evidence that an employee has misused their personal leave.
If an employee produces a medical certificate which the business thinks is suspicious, the first step should be to contact the doctor or medical centre to determine whether they did in fact issue the certificate. Whilst the doctor will not be able to provide information about a patient or their medical history, in most cases, they should be able to confirm whether the certificate is genuine.
In Tokoda v Westpac Banking Corporation [2012] FWA 1262, an employee provided a medical certificate without the doctor’s provider number on it. Suspecting that the certificate may be false, Westpac phoned the doctor’s surgery, which confirmed that they did not issue the certificate. Westpac put allegations to the employee that she had provided a false medical certificate, which she eventually admitted to. Westpac dismissed the employee, who went on to make an unfair dismissal application. The Fair Work Commission found that the dismissal was fair on the basis that the employee had been dishonest, fraudulent and had breached Westpac’s code of conduct by producing a false medical certificate.
In a more recent case, Bluzer v Monash University [2017] FWC 2536, an employee was dismissed after the employer noticed that she had altered her medical certificate. In 2015 the employee attended a dental appointment while on annual leave in Bali, upon her return to work she sought to convert her annual leave to personal leave and provided a medical certificate for her appointment. The employer rejected the certificate as it did not say that the employee was not fit for work and requested a reissued certificate. In 2016, the employee returned to Bali and had another dental appointment. She provided a medical certificate for the 2016 visit and also provided an updated medical certificate for the 2015 appointment. However, the employer noticed that the new 2015 medical certificate contained the same grammatical errors as the 2016 certificate and became concerned about its authenticity. From here, the employer conducted an investigation and ultimately dismissed the employee for altering the medical certificate. The Fair Work Commission upheld the dismissal, finding that the employee had altered the certificate and that disciplinary action was appropriate.
Similarly, if there are other grounds for believing that an employee has misused their sick leave and there is sufficient evidence, allegations should be put to the employee and they should be required to respond. In CFMEU v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157, an employee who threatened (and then actually took) sick leave after his annual leave request was denied, had his employment terminated following a procedurally fair investigation. Despite the Court noting that it might be unjust given that the employee had been legitimately sick, the employer had not terminated the employee because he took personal leave but because his conduct had irreparably broken the employment relationship.
Be cautious
Despite there being a temptation to rush out and confront every employee who has been suspected of chucking a sickie, which given the trend in Australia, there are probably many employees who fit into this category, it is important that businesses act cautiously when investigating the misuse of personal leave.
Under section 352 of the Fair Work Act, an employer must not dismiss an employee because they are temporarily absent from work because of illness or injury (see Part 9.2). Further, both state and federal discrimination legislation makes it unlawful for an employer to subject an employee to a detriment, including disciplinary action or termination of their employment on the grounds of their disability, which can include a temporary illness (see Part 9.2).
For this reason, it is vital that a business has sufficient evidence (rather than just mere suspicions) to establish that an employee has misused personal leave prior to taking any action against them, otherwise it could end up in protracted disability discrimination proceedings or facing claims that it unlawfully terminated an employee’s employment.
Given the difficulty in taking disciplinary action against an employee who is ill or injured, having a sensible personal leave policy and taking steps to understand the reasons as to why employees are taking personal leave are the most important steps a business can take not only to reduce employee absenteeism but also to increase employee engagement.
The content of this publication is general in nature and provides a summary of the issues covered. It is not intended to be, nor should it be relied upon, as legal or professional advice for specific employment situations. Olexo Workplace Law recommends that specialist legal advice should be sought about specific legal issues.
