The Fair Work Ombudsman and the Fair Work Act 2009 sets out the National Employment Standards (“NES”)
The NES sets standards for employment and establishes a comprehensive base of standards for employers and their employees. Employees can use the NES to understand their employment entitlements. While for employers it sets the minimum benchmarks for employment arrangements and obligations with their employees.
The (NES) sets out 10 minimum employment entitlements that have to be provided to all employees.
The national minimum wage and the NES make up the minimum entitlements for employees in Australia. When employers work with their employees to establish an award, employment contract, enterprise agreement or other any other registered agreement they can provide terms and agree conditions that are less than the national minimum wage or the requirements as set out under the NES.
The NES sets out 10 minimum requirements and they are as follows:
1. Maximum weekly hours
2. Requests for flexible working arrangements
3. Parental leave
4. Annual leave
5. Personal carers leave & compassionate leave
6. Community service leave
7. Long service leave
8. Public holidays
9. Notice of termination & redundancy pay
10. Fair Work information statement
We'll briefly cover the NES in the context of Medical Certificates. But first who's covered by the NES?
All employees in the national workplace relations system are covered by NES regardless of the award, registered agreement or employment contract that may apply. All 10 points cover full time employees and their employment. However, casual employees are only covered by a subset of NES entitlements as follows:
· unpaid carer's leave
· unpaid compassionate leave
· community service leave
· the Fair Work Information Statement
In some states and territories long serving casuals may be eligible for long service leave. We recommend you check your own state or territory laws relating to long service leave entitlements.
In addition where there is an expectation of ongoing work for a casual and the casual has been employed regularly and systematically for at least 12 months, there are extra entitlements from the NES and these are:
· the right to request for flexible working arrangements
· access to parental leave.
For more information we refer you to the Fair Work Act 2009.
Medical or Doctor’s Certificate
A medical certificate is defined as documentary proof of illness from a registered medical practitioner stating that the employee will be/was unfit for work. A medical certificate is generally regarded as irrefutable proof that an employee was legitimately absent from work because of the stated illness or injury. Without a certificate, the employee is not entitled to personal leave or compassionate leave.
This is set out within the NES as well providing the source for the minimum entitlement provided for most employees relating to the provision of medical certificate. In addition, the NES qualifies an entitlement to be paid on the basis of personal, carer or compassionate leave. It particular, it states that the employee must provide the employer, when requested, with evidence that would satisfy a reasonable person relating to the personal, carer or compassionate leave request. This is in order to support any payment by the employer to the employee relating to these employee entitlements.
As set out within the NES, the employee is not entitled to payment for personal, carer or compassionate leave unless he or she complies with the request by the employer to show evidence in support of the claim. However, it should also be noted that the employer does not have to require an employee to provide documentation. Nonetheless, to avoid any potential dispute between the employer and the employee it makes it a lot easier and straight forward if documented evidence is provided to the employer by the employee in support of personal, carer or compassionate leave.
There are some key considerations to be kept in mind and understood by employees and employers in relation to the use and provision of medical certificates and employee entitlements relating to their use.
Not an entitlement without a certificate
Many employees believe that their use of accrued personal and carer's leave entitlements is a right that can be taken at any time during the course of their employment.
However, personal leave is only available to an employee who can prove that he or she is unable to attend work because of a personal illness or injury. While in the case of carer’s leave, an employee who is unable to attend work because they have to care for a household member who is ill or injured also requires evidence or proof that this is the reason behind their inability to attend work.
An award or an agreement can insist and set out the requirement of proof, although it is not uncommon to allow an employee one day's leave without having to produce a medical certificate, but this is clearly at the discretion of the employer and the terms set out in the employees award or employment agreement.
Notice required under the NES
The NES sets out very clearly the requirement and process of notice to be followed and provided by the employee at the employer’s request:
Notice must be given as soon as reasonably practicable to the employer that the employee requires leave because of personal illness or injury, or to provide care and support to a family or household member because of his or her illness or injury, or to provide care or support to a family or household member because of an unexpected emergency affecting them.
This is an unambiguous requirements as set out by the NES for employees to follow in respect of their notice to their employer.
Industrial tribunals have typically granted a claim of payment for personal leave to the employee, when the employee has failed to provide proper notice, provided the employee can produce satisfactory evidence of his or her personal illness or injury to the employer or the tribunal when requested.
The provision of evidence is the most crucial criteria for qualification and support for personal leave and the payment to the employee of this entitlement. In particular, given that the employee’s defence would normally pivot on the question of providing notice and the added question that this notice was 'reasonably practicable' for the employer and supported by documented evidence from a recognised authority.
Evidence of illness or injury
For an employee to take personal, carer or compassionate leave, an employee must, if required, provide evidence that would satisfy a reasonable person of their entitlement to take the relevant leave. This applies to whether the leave is paid or unpaid.
A medical certificate is regarded as irrefutable proof of an employee’s personal illness or injury. However, satisfactory evidence may vary from a statutory declaration for a single day’s absence, to evidence from a suitably qualified registered professional relevant to the employee’s illness or injury. If an employer wishes to challenge a medical certificate, they can, this is within their discretion to do so, and this would normally entail the employer requesting another medical opinion in relation to the employee's state of health.
s12 of the Fair Work Act 2009 defines the term medical practitioner to mean a person registered, or licensed as a medical practitioner under a law of a state or territory that provides for registration or licensing of medical practitioners. Interestingly however, it is not used in the context of the evidence requirements under s107 of the Fair Work Act. If an employee cannot comply with the documentation requirements due to circumstances beyond his or her control, the employee will not have breached the Standard. Nonetheless, the employer may still request evidence relating to and supporting the employees leave request or absence.
Registered health practitioners
Whether an employer accepts a personal or carer’s leave certificate from a person other than a medical practitioner will depend on whether the employer considers the certificate to be reasonable (on objective grounds) given the particular circumstances surrounding the leave.
The situation is not exactly clear because the previous Australian Fair Pay and Conditions Standard (AFPCS) had listed a number of professions which could sign a personal or carer’s leave certificate. Such a list no longer appears in the NES. It would appear that the assumption is that a medical practitioner is best positioned to assess and provide evidence relating to fitness to work and to assessing and certifying the personal circumstances surrounding a personal or carer's leave request.
A factor which may be relevant as to the reasonableness of the provision of a certificate could be whether the provider of the certificate belongs to a professional group which requires official registration, as this would be more likely to be acceptable. In this case, a registered doctor or medical practitioner is recognised by their respective professional body through ongoing certification, training and skills recognition. As such, they would meet the requirement of belonging to a professional group requiring official registration and competency recognition.
Refusing an employees evidence
A medical certificate is generally regarded as irrefutable proof that the employee was legitimately absent from work because of the stated illness or injury.
To successfully challenge the medical certificate’s accuracy, an employer would need to obtain a second medical opinion, (as discussed above), that in effect contradicts the original medical opinion, or assists the employer in confronting the employee with evidence of activities that contradicts the medical certificate provided.
However, there is case law in Australia where a medical certificate has been and was successfully challenged.
The Federal Magistrates Court upheld the employer’s right to question the authenticity of a worker’s medical certificate, after a Melbourne employee attended a football match in Perth on a day he claimed as sick leave.
The employee had openly discussed with workmates his decision to attend the match, management learned of his plans and he was dismissed upon his return to work, despite producing a medical certificate for the period of his absence.
The onus is clearly on the employer to provide evidence challenging the accuracy of a medical certificate. However, it is difficult for an employer to refute the authenticity of an employee’s illness or injury when a medical certificate is produced as evidence of personal illness or injury.
Backdating medical certificates
Theoretically, medical certificates should not be backdated, although the employer should consider the particular circumstances surrounding the employees illness, family reasons or the events surrounding the absence.
It would not be considered unreasonable by most employers for a medical certificate to be backdated one or even two days, particularly as there may be evidence from co-workers confirming the onset of the employee’s illness, or where family circumstances are such that it may be difficult for a person to obtain a medical certificate within a short period of time. Clearly, where a medical certificate has been backdated by a week or more there may be good grounds for an employer to challenge the legitimacy or validity of the certificate.
If an employee informs a doctor that he or she was unable to attend work on a given day because of a certain condition, the doctor’s certificate must be dated according to the date of examination, not the date the worker conveyed their inability to attend work. However, once again this is somewhat at the discretion of the medical practitioner given the circumstances surrounding the absence and the request.
In the above situation, the medical certificate will likely only state the day or days the absenteeism occurred, the condition as described by the patient or the reason for the absence, while the doctor may also include information relating to any persisting signs or symptoms at time of consultation.
Nature of illness or injury preventing work attendance
An employee qualifies for personal leave by virtue of the illness or injury preventing attendance to their employment on a day they are required to attend. The cause of the illness or injury is usually not important and is not a requirement for inclusion within a medical certificate. A medical certificate is not made invalid if an explanation of the illness or injury is absent within the description of the medical certificate.
The only exception may be self-induced drug and/or alcohol related illnesses, where in some cases, industrial tribunals have held that such illnesses do not qualify or support personal leave days or absence from work.
Routine medical checks
Employees need to be aware that they may not necessarily be entitled to personal leave when attending a routine medical or dental appointment. Such circumstances are not considered an illness or injury and therefore would not prevent an individual employee from going to work or attending work for even part of the day for a shift. However, it may be that the after-effects from such an appointment may entitle an employee to personal leave for the balance of the work day but in and of itself may not constitute a full day's leave of absence.
For example, if an employee visits a dentist to have teeth filled or other ‘cosmetic’ work, the employee is not entitled to personal leave because the employee would not be able to establish his or her inability to attend work that day; whereas, an employee who has a wisdom tooth removed or other major dental surgery would be entitled to claim personal leave from the following day.
On the basis of reasonableness, it would be expected that such situations could rightly be planned and where they can, any absence is best discussed with an employer prior to assuming that a leave of absence for such routine medical matters will be accepted by the employer.