Footy fever is no excuse for sick leave

A passionate AFL supporter has become the focus of an employer’s successful challenge to the veracity of a medical certificate. By PETER VITALE

A passionate Australian Rules football supporter has become the focus of an employer’s successful challenge to the veracity of a medical certificate.

Nathan Anderson was an employee at Melbourne’s Crown Casino and a football fanatic. At the end of the 2007 season, Essendon Football Club’s coach Kevin Sheedy and captain James Hird were to finish their long and distinguished careers with the club. Anderson wished to attend the last game of the season to “farewell” Sheedy and Hird. The problem for Anderson was that the game was to be played in Perth.

Anderson obtained tickets for the game and visited his local medical practitioner who gave him a medical certificate covering him for the day of the match. He then told his manager at Crown that he intended to take sick leave to attend the match. The manager warned him against misusing sick leave and suggested that he should swap shifts or request annual leave. He told Anderson that he would be in serious trouble if he otherwise failed to attend for work.

Anderson took the day off as sick leave and attended the match in Perth. Crown terminated his employment despite Anderson’s assertion that the medical certificate could not be challenged. The Federal Magistrates’ Court dismissed his claim that the termination of his employment was unlawful because it was for reasons of temporary illness or injury.

While the facts are unusual, the case does highlight that there may be scope for an employer to challenge a medical certificate which is not considered genuine. In the words of the Federal Magistrate, “I do not think it can be the case that either a court, or indeed even an employer, is necessarily bound to treat a medical certificate as binding on them”.

However, the court was careful to highlight that it would only be in the most unusual circumstances that a medical certificate should not be accepted on its face.

The court found that the doctor (who gave evidence) had not conducted any proper diagnosis of Anderson. It was clear that Anderson was at all times in good physical health and that beyond the “distress” he asserted had arisen from the retirement of Sheedy and Hird, there was no medical condition from which he suffered.

Furthermore, the certificate was give four days before the match, at which time the doctor could not have reasonably assessed Anderson as unfit for work on the day.

Some employers also have a reluctance to go behind a medical certificate provided by an employee, but there is no reason that clarification about an employee’s capacity cannot be sought from the employee’s doctor.

One example is a case where the employee is certified fit to perform certain limited duties. It would be open to the employer in those circumstances to verify with the medical practitioner issuing the certificate precisely what limitations are involved.

Similarly if an employee is returning from injury, and employer may want clarification from the employee’s doctor to ensure that the doctor has a full understanding of the employee’s duties before declaring the employee fit for a return to normal duties.

The Australian Industrial Relations Commission has also recognised that it might be open to an employer to require more details of the employee’s impairment if the certificate is vague and doesn’t satisfactorily identify what duties the employee is, or is not capable of performing.

In other circumstances an employer may have evidence of the employee engaging in out of work activity that is inconsistent with the medical certificate and it would be open to the employer to question the certificate.

Of course it is always open to an employer who suspects a certificate may have been falsified to endeavour to prove that. Falsification of a medical certificate would usually provide multiple grounds of serious misconduct for termination of employment, including dishonesty.

Employers often have concerns about medical certificates that are produced a significant time after the illness occurred. While an employer is not entitled to reject such a certificate out of hand, a certificate which is issued by a medical practitioner a substantial period after the illness may give grounds for suspicion and the employer would generally be entitled to make further enquiries.

Furthermore many industrial agreements or awards specifically entitle the employer to reject a medical certificate produced in these circumstances.

The lessons for employers:

• Don’t reject medical certificates out of hand, they are, on their face considered evidence of the employee’s illness;
• Clarify with the employee’s Doctor the nature of any restrictions on duties or the employee’s capabilities to return to normal duties;
• Suspicion of activity inconsistent with an illness should be investigated and proof obtained before taking disciplinary action;
• Medical certificates are often vague, and employers should ask for further details, which enable verification of the employee’s incapacity without breaching Doctor/Patient confidentiality;
• If the employee has signalled a prior intent to be absent, which is subsequently supported by a medical certificate, there may be grounds, following investigation to reject the medical certificate