If a worker obtains a medical certificate, and is genuinely sick, it would be unlawful for the business to treat the worker in a negative way because the worker was sick. This is generally well known by most people.
However, it is also not uncommon for people to every now-and-then to take a “sickie”. I dare say, a significant portion have taken a sick day under suspicious circumstances.
A business may take action against a worker who has taken sick leave inappropriately, where there is evidence of dishonesty by the worker.
In Anderson v Crown Melbourne Ltd, Mr Anderson, who worked for Crown in Melbourne, took sick leave in September 2007. Crown found out late that Mr Anderson was in fact attending a football game in Perth, when he was supposedly “sick”. Mr Anderson provided a medical certificate to Crown alleging depression. Crown dismissed Mr Anderson for this dishonesty. Mr Anderson made a claim that his dismissal was a result of his temporarily absence from work due to illness or injury (which would be unlawful it Mr Anderson was actually sick).
The Court held that Mr Anderson’s dismissal was not unlawful. The Court was of the opinion, given that Mr Anderson was able to travel to Perth, that he was in excellent health and was not experiencing depression or any other illness as diagnosed in the medical certificate.
The lesson from this case is that a medical certificate is initially evidence that a worker is experiencing a medical condition and is unfit to work. However, in some circumstances, where there is evidence to the contrary, the business may reject the validity of such a medical certificate. This will obviously be exercised in unusual and exceptional circumstances, such as what occurred in Mr Anderson’s case.
In Walker v Bowtie Removals and Storage Pty Ltd, Ms Walker decided to take sick leave instead of using her annual leave to travel to a family event interstate. Ms Walker obtained a medical certificate which stated that her leg was infected, which was her reason to justify taking sick leave. The business suspected Ms Walker was going on holiday after staff saw her printing airline tickets from the work printer. The business began an investigation and it was revealed that Ms Walker had deleted emails regarding her holiday from her work computer and also scolded her son for sending an email to her work computer about her planned holiday.
The business subsequently terminated Ms Walker for her dishonesty about taking sick leave, when clearly she was well enough to take a flight interstate. Ms Walker filed an unfair dismissal claim alleging the dismissal was unlawful. In that case, the business, which was covered by the Small Business Fair Dismissal Code, was successful in defending Ms Walker’s claim on the basis that there were reasonable grounds to dismiss Ms Walker without notice, because Ms Walker’s behaviour was a serious breach of good faith and trust necessary in the employment relationship. This arose because Mr Walker was taking sick leave dishonestly.
These are some examples of cases where the business was able to prove that the medical certificate provided was wrong or there were strong inferences to that effect. If a business is going to take the step of not accepting a medical certificate, it must do so if it has evidence. A mere suspicion or speculation that a medical certificate is false is not good enough. If a business cannot back-up the evidence in Court, it risks being liable in an unfair dismissal or a general protections claim by the worker.
Of course there will be times when the worker may have taken sick leave when they’re not sick, which will always happen from time-to-time. But remember, if you can’t prove the medical certificate is false in some way, it is better to give a worker a free day off instead of paying out compensation for the claim.
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