An apple day might keep the doctor away, but some employees actually want to take day off work. The answer – the time-honoured sickie.
Proving illness is generally either unnecessary or relatively straightforward. The Holidays Act only requires employees to provide medical certificate if they are absent from work for period of three or more consecutive calendar days, which does not capture many sickies, as they tend to be one- or two-day absences.
Employers can require proof of sickness or injury in cases involving less than three days where they have reasonable grounds to suspect that the sick leave is not genuine. But that doesn’t solve the problem, because medical certificates are easy to come by. Earlier this year, Australian and New Zealand doctors were outraged at doctorsnotestore.com, South African company selling fake doctors’ certificates for “approx $67.99” over the internet.
It is just as easy to get real certificate from qualified GP if the recent case of Anderson v Crown Melbourne Ltd (3 March 2008) is anything to go by. Anderson, self-proclaimed football fanatic, took day’s sick leave to attend an Australian Rules football game in Perth. Prior to taking the day off, he had tried without success to rearrange his shift, and had even told colleagues that he would just take sickie if he couldn’t get time off. He was warned by manager that he would be in serious trouble if he followed through with his plan – which he did.
He saw doctor, told him of his distress at possibly missing the game, and was issued with medical certificate. When he returned to work the next day he was suspended for misusing sick leave, and after an investigation, was dismissed.
Anderson challenged his dismissal by arguing that the employer could not go behind the doctor’s certificate, as that should be enough to prove the genuineness of his absence. The Court looked at the evidence and concluded that medical certificate from qualified medical practitioner within their area of expertise should generally be accepted as proof of illness for employees taking sick leave.
However, Anderson’s situation was considered an “exceptional case” given the evidence he was not actually sick, and that he was not the subject of any “meaningful diagnosis” from the doctor. It turned out the doctor had previously been in trouble with the medical authorities for improperly issuing medical certificates. The Court found the dismissal justified.
But what if an employee is actually unwell? Can an employer dismiss an employee where they take too many sick days? And what if they have medical certificates confirming they cannot return to work within reasonable time?
The recent Employment Relations Authority case of Alsop v Forbes & Davies Ltd (15 August 2008) showed that it is possible to dismiss justifiably in some cases. Alsop was motocross rider, who worked as warehouse assistant. In the year and half that he was employed, he was absent from work for 68 days. The employer accepted the absences were for genuine illnesses, however the warehouse was small and the absences had major impact on its ability to run the business (which it told Alsop repeatedly).
Alsop then injured his hand and wrist in motocross competition, and was concussed when he was knocked from his motorcycle on the way to work. He took almost two months off to recover (with his medical certificate being extended four times), and the last one of these, on 12 July, actually went as far as saying that he would be able to return on 23 July. The employer warned him that it could not hold his job open any longer if he did not. On 23 July, the employer received yet another medical certificate, and sent the employee letter terminating his employment.
The Authority said the employer was entitled to rely on the statement in the certificate that he would return on 23 July, and to treat the final medical certificate, which stated that he would return on 30 July, with scepticism. Despite the apparently minimal dismissal process followed, the Authority said the dismissal was justified.
These decisions suggest that employees will not always be able to rely on medical certificate – whether to justify sickie, or to force the employer to keep their job open in situations involving longer absences. For employees, this will no doubt be concerning development. For employers, however, it will be welcome – perhaps the days of having to accept medical certificate, no matter how dubious the circumstances, are coming to an end.
Greg Cain is partner and Jennifer Jones solicitor at Minter Ellison Rudd Watts.
