Call free on
1300 575 394
Get a quote

Can you challenge a medical certificate?

This question was recently sent to our Workplace Advice Line.
Return to previous page
Can you challenge a medical certificate?

Can you challenge a medical certificate?

9 November 2020

Can we challenge the validity of a medical certificate if we suspect an employee wasn't really sick?

This question was recently sent to our Workplace Advice Line.

Q Last month we refused an employee's request for two weeks’ annual leave because of operational requirements. The employee has subsequently been absent and claimed personal leave for the period originally requested as annual leave.

The employee has contacted his immediate supervisor and claims to have a medical certificate covering the absence. The supervisor suspects the employee has been on a holiday, as do his work colleagues.

If the employee produces a medical certificate, can we challenge its validity or must it be accepted as irrefutable proof of the employee’s claimed illness?

A To successfully challenge the medical certificate’s accuracy, you would need to confront the employee with evidence of the activities that contradicts the medical certificate. The onus is on the employer to produce evidence that refutes the accuracy of the medical certificate. Another employee’s hearsay would not amount to reasonable evidence, unless more substantial evidence is forthcoming which proves the employee was overseas during the claimed period.  

Production of a medical certificate is generally regarded as irrefutable proof that an employee was unfit for work because of the stated illness or injury.

It should be noted the employee has a number of statutory protections under the Fair Work Act. These include unfair dismissal and action under general protections which relates to the employee exercising a workplace right (personal/carer’s leave) or dismissal due to a temporary absence from work due to illness or injury. The onus of proof in a general protections claim lies with the employer.


AMA guidelines

The AMA Guidelines for Medical Practitioners on Certificates Certifying Illness 2011: Revised 2016 states that the usual requirements for a medical certificate are:
  • name and address of the medical practitioner issuing the certificate
  • name of the patient
  • date on which the examination took place
  • date on which the certificate was issued, and
  • date(s) on which the patient is or was unfit for work

Guideline 2.4 states that “where a third party (such as an employer) contacts the doctor to verify the veracity of a medical certificate (eg., to determine if it is fraudulent in any way), the doctor should verify the third party’s identity, ask for a copy of the certificate and confirm the veracity of the certificate. The doctor should not provide any other information about the patient without the patient’s express consent.”


Carer’s certificates

The AMA guidelines also provide the following requirements in relation to the issuing of a carer’s certificate:
  • a carer’s certificate may be required by a third party where an individual needs to take time away from a particular activity to care for a patient (often an immediate family member) who is sick or injured.
  • only the patient’s treating doctor should issue a carer’s certificate.
  • the treating doctor has a responsibility to ensure that the patient requires or required care by the carer but it is not the treating doctor’s responsibility to determine who may qualify as a carer.


Case law

There have been instances before industrial courts and tribunals where employers have successfully challenged medical certificates.
  • An employee who produced a medical certificate as proof of illness was not dismissed unlawfully because of a temporary absence from work due to illness: the employer discovered he attended a football match on that day. See Anderson v Crown Melbourne Ltd [2008] FMCA 152 (3 March 2008).
  • The (then) Australian Industrial Relations Commission found that an employee who manually altered a medical certificate to claim additional sick leave (and was dismissed by the employer) was guilty of misconduct, which amounted to a serious breach of an employee’s duty of honesty and constituted a valid reason for dismissal. See Tina Louise Sulis v Woolworths Limited [2009] AIRC 791; (29 September 2009).
  • An employee who had a plausible reason for altering a medical certificate was deemd to have been dismissed unfairly, after the employer did not carry out a proper investigation of the facts. The issue of the medical certificate was used by the employer as a pretext to dismissal because the employee had been on light duties. See Hammond v Australian Red Cross Blood Service - Sydney [2011] FWA 1346 (4 April 2011).
  • An employer who dismissed an employee who presented a false medical certificate in claiming one week of personal/carer’s leave was deemed to have a valid reason for the dismissal. The employee’s manager checked the surgery and was informed the doctor had neither seen the employee nor provided the medical certificate. The worker's employment was terminated because her dishonest and fraudulent conduct had breached the bank’s standards according to its code of conduct. The employer had notified the employee of the reason for the termination and had given the employee an opportunity to respond to it. (Then) Fair Work Australia was satisfied that the employer had no option but to terminate the employment because it had lost its trust in the employee because of her dishonesty. See Tokoda v Westpac Banking Corporation [2012] FWA 1262 (14 February 2012).
  • An employee who altered a medical certificate so she could return to work sooner than a doctor ordered was fairly dismissed for serious misconduct. The Fair Work Commission concluded that the chef had engaged in misconduct by falsifying the medical certificate, even though it had caused the employer no harm and given herself no advantage. Altering a medical certificate could undermine an employer’s confidence in such important documents. The employer had a valid reason for dismissing her. See J v Alpha Flight Services Pty Ltd [2016] FWC 4259 (18 July 2016).

The bottom line: While a medical certificate is generally regarded as irrefutable proof of an employee’s illness or injury an employer may challenge the validity of a medical certificate where there is sufficient objective proof which contradicts the certificate.
 

Workplace Advice Line

Got a question about HR management or employment law? Call our Workplace Advice Line on 1300 575 394.

Sign up to get the latest news and updates

Like what you’re hearing?

With plans available from just $58 per week, now is an excellent time to join Workplace Assured.

PROTECTION
REASSURANCE
GUIDANCE