Summary
- Employers can take disciplinary action, including termination, against employees who submit fraudulent medical certificates.
- Businesses should have clear sick leave policies that outline consequences for dishonest conduct.
- Under the Fair Work Act, dismissal for submitting a fake certificate may be considered valid grounds if procedural fairness is followed.
- This article explains the legal obligations and risks for Australian businesses when employees submit fraudulent medical certificates, under Australian employment law.
- It is produced by LegalVision, a commercial law firm that specialises in advising clients on employment law matters.
Tips for Businesses
Document all sick leave requests and keep records of submitted certificates. If fraud is suspected, investigate promptly and follow a fair process before taking disciplinary action. Update your employment contracts and workplace policies to explicitly address fraudulent conduct, ensuring consequences are clearly stated and consistently applied.
Employers can request a medical certificate from an employee taking personal or carer’s leave at any time, including on the first day of absence. Knowing when and how to ask for evidence helps you manage leave fairly and protect your business. This article will set out when you can ask your employee to provide a medical certificate, and what to do if you think the certificate is fake.
What is Personal or Carer’s Leave?
The Fair Work Act 2009 entitles employees to ten days of paid personal/carer’s leave per year, which is pro-rated for part-time employees.
Your employees can use this leave:
- if they are not fit to work due to a personal illness or injury; or
- to provide care or support to a member of their immediate family or a member of their household who requires care or support because of a personal illness or injury or an unexpected emergency.
Hence, you could ask employees to provide evidence to support their absence from work, such as a medical certificate.
When Can I Ask My Employee For a Medical Certificate?
There is a misconception that you can only ask your employee for a certificate after they have been off work for two or more days. In reality, you can ask an employee to provide a certificate on the first day or less than the first day if the employee takes a half-day off due to being unwell.
Sometimes, employers refrain from doing this due to the administrative burden of chasing an employee for a certificate every time they are off. Additionally, an employer might be considerate of the fact that the employee should focus on getting better rather than arranging a certificate.
For this reason, some employers only ask for a certificate if the sick day occurs after or before a non-work day, such as a Monday or Friday, or the day before or after a public holiday. This may be useful to ensure the employee did not take personal/carer’s leave when they should take a day of annual leave.
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What Can I Do if I Believe it is a Fake Medical Certificate?
If you think an employee’s medical certificate is fake, you can contact the medical practitioner that issued the certificate. While the medical practitioner cannot provide specific medical information concerning the employee, you only need to confirm whether their practice issued the certificate.
Suppose the employee did not obtain a certificate from the medical practitioner. In that case, you can consider commencing disciplinary action against the employee. You can commence disciplinary action by giving the employee a chance to respond to the allegation.
On the other hand, if the medical practitioner issued the certificate, you should be confident that it can satisfy a reasonable person.
Should I Pay Sick Leave If I Think the Certificate is Fake?
Suppose an employee:
- provides a certificate at your request in the timeframe you set; and
- you are satisfied with the certificate’s validity.
In that case, you must pay your employee for the day/s of personal/carer’s leave.
However, if an employee does not give you evidence when asked, they may not be entitled to paid leave. Instead, you may treat it as unpaid leave until they provide a satisfactory certificate or statutory declaration.
As an employer, understand your essential employment obligations with this free LegalVision factsheet.
Key Takeaways
As an employer, you are able to ask an employee for a medical certificate or statutory declaration at your discretion. Nevertheless, you may want to set out your expectations regarding evidence of sick leave in your workplace policy. It is important to remember that the evidence needs to satisfy a reasonable person of the illness or injury. If you believe the certificate is fake, you can contact the medical practitioner to confirm if they issued it.
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Frequently Asked Questions
You can ask an employee to provide a certificate on the first day of their absence.
If you think an employee’s certificate is fake, you can contact the medical practitioner that issued the certificate. While the medical practitioner cannot provide specific medical information concerning the employee, they can confirm whether their practice issued the certificate.
Yes, you can outline your evidence requirements in a workplace policy to set clear expectations for employees taking personal/carer’s leave.
No, casual employees do not receive paid personal/carer’s leave – this entitlement applies to full-time and part-time employees only.
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