In order for an employee to take accrued paid sick leave under the Fair Work Act 2009 (Cth) (FW Act) he or she must not be fit for work because of a personal illness or injury affecting him or her.
In order to exercise this entitlement, the FW Act provides the employee must give his/her employer evidence that “would satisfy a reasonable person” that sick leave is being taken for this reason.
The kind of evidence an employee must give in order to take paid sick leave can be explained by a modern award or enterprise agreement applying to the employee and his/her employer.
However, if an employer has a right under a modern award or enterprise agreement to require an employee taking sick leave to provide a certain kind of medical evidence and/or provide it in particular circumstances, the FW Act requires that the employer exercise that right reasonably.
This was confirmed by the Federal Court recently in Australian and International Pilots Association v Qantas Airways Ltd  FCA 32. In this decision, Justice Rares took a robust view on the employer’s right to seek medical information from an employee absent from work on sick leave.
This decision concerned a clause in an enterprise agreement that provided:
“if a flight crew member reports sick on the same day that he or she is contacted for duty or on the following day, the Company may require the flight crew member to produce a medical certificate or other evidence of unfitness for duty.”
The Court ruled that the provisions in the FW Act and enterprise agreement were not the exclusive record of the employer’s rights to require an employee to provide medical evidence.
The Court determined an employer has a right, in addition to those in the FW Act or industrial instrument, to require an employee to provide sufficient medical information, and if necessary, require the employee to attend a medical examination to procure that information. The right to this information is implied by law into employment contract because it is necessary, according to the Court, to allow the employer to comply with its statutory work health & safety obligations, namely:
• To ascertain whether the employee’s injury or illness flows from some failure of the employer’s duty to provide a healthy and safe workplace;
• If so, to enable the employer to remedy the situation as soon as practicable and ensure an employee who has been previously unfit for work can return to work safely.
Although it was not considered by the Court, the implication of this right may also arise because of anti-discrimination legislation, which in some jurisdictions creates a positive obligation to provide reasonable support to facilitate impaired workers performing their pre-injury role.
The Court also stated that the employer’s right to this information was necessary to allow the employer to make its own business arrangements to adjust for the impact that the sick leave caused on it. The Court observed in the case before it, it would have been “quite unrealistic” to expect the employer to be left with no ability to obtain more information about the present and likely future fitness of the employee on extended sick leave, given the “uninformative medical certificates” it had received told the employer nothing about how to plan for the employee’s absence or return to work.
Implications for employers
• You can include provisions in employment contracts, policies, awards and enterprise agreements allowing you to insist on employees taking sick leave provide you with certain kinds of medical evidence in certain kinds of circumstances. However your application of these provisions is subject to the FW Act requirement that you apply these provisions reasonably. Ordinarily, it would not be reasonable to insist that an employee supply a medical certificate for one-off days of absence, unless they are excessive or follow a certain pattern (e.g. before or after week-end or public holiday or RDO).
• Where an employee is taking an extended period of sick leave for reasons which are not clear and/or the end date is unknown, you are entitled to require an employee to provide sufficient medical information to enable you to understand the employee’s condition, the causes of it and the likely prognosis. You can, if necessary, require the employee to attend a medical examination to procure that information.
Author: Charles Power
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