Always get a medical certificate
Always get a medical certificate if you can, then your injury, illness is then evidence based. First things first, if you are taking sick or Carer’s leave, you must notify your employer as soon as possible. It is not necessary that you notify your employer before you start taking leave. However make sure you let them know quickly so they know where you are. You should also let your employer know how long you expect to be off work. So that your employer can plan who will cover your work in your absence.
It all depends on the circumstances. If you wake up with a migraine, then obviously you inform your employer straight way. If its a specialist appointment, with the appointment made well in advance, don’t leave it to the last moment to inform your employer. Some Employers have policies of you must inform then 24 hours before being off. Just do the best you can, if you have a car accident on the way to work, its ridiculous to have to inform them the day before, its case by case.
Can my employer ask me for a medical certificate?
Yes, employers are entitled to ask for evidence that the leave was taken legitimately, including after one day or less off work. Evidence of an illness or injury can include a medical certificate or a statutory declaration. There are no laws applying to all employees about what evidence is required to prove a legitimate absence. Some awards or registered agreements may specify when an employee must provide evidence and what evidence they must provide.
What happens if I do not provide a medical certificate?
If your employer asked you for a medical certificate and you do not provide one, you may lose your entitlement to be paid for your sick leave.
Technically, you may also be subjected to disciplinary action or be dismissed for your failure to comply with a lawful and reasonable direction. In any event, it would be harsh for your employer to sack you just because you did not provide a medical certificate. Especially where you may have reasonable circumstances. It will ultimately depend on your employment record. The duration of your absence, and the reason for your absence, as to how harsh it is for your employer to dismiss you for not providing a medical certificate. However, the final answer is yes, your employer can sack you for not providing a medical certificate.
Employer want to know what’s wrong with me.
There is no absolute right to the employer having to know what’s wrong with you. Sometimes the reason your ill, can be very personal, or very serious in nature. You may worry the employer will tell others. (mental illness, early stages of pregnancy, injuries from domestic violence, getting results from test for cancer, etc.). However the longer your not attending work, the more the employer is entitled to make enquiries as to what’s going on. You don’t want to find that you end up dismissed over miscommunication over something that could have been avoided.
Employees starting asking anyway, what’s happened to you, plus they might start getting cranky. Others are picking up your work load and want to know why, managing these absences can be difficult. It can be too much information, allowing the employer to form the view your too injured or your simply not coming back and just using up sick leave or organizing your next job. Or too little information and the employer feels mislead, uninformed and starts jumping to conclusions
What if my employer is being unreasonable?
As stated above, your employer is entitled to request evidence of your absence if you wish to be paid for your leave. However, if your employer goes beyond this, they may not be acting reasonably. For example, this may include where your employer demands to attend your medical appointment with you. Or your employer contacts your doctor for further information about your condition. In some cases the employer rings your partner, children, parents wanting to know what’s really going on.
Be careful they are just wolves’ in lambs clothing as the saying goes. In either of these cases, it may be argued that your employer is discriminating against you on the basis of disability. You may have a General Protections (adverse action by your employer) case, or a bullying complaint if the behaviour continues. You may also be able to take your issue to the Fair work Commission, in several forms.
What does Fair work Act say?
Protection from dismissal for taking sick leave
Employees who are absent from work because they’re sick or injured may be protected from being dismissed. Employees who can provide evidence of their illness or injury are protected from being dismissed because of their absence if they’re:
- away for less than 3 consecutive months or less than 3 months in total over the last 12 months, or
- still using their paid sick leave.
When an employee is away for longer than 3 months
An employee is no longer protected from being dismissed because of their absence (even if they provide evidence) if:
- their absence is more than 3 consecutive months or more than 3 months in total over the last 12 months, and
- they’ve used all of their paid sick leave.
Employees who use paid sick leave the whole time can’t be dismissed by their employer because of their absence, regardless of how long they’re on leave.
Other protections from dismissal
Even after an employee has been absent for more than 3 months and used all of their paid sick leave, they may still be protected from dismissal for other reasons. For example, additional protections may apply under state and territory workers compensation and rehabilitation laws.
Employers must still follow the appropriate rules for carrying out a dismissal and employees may challenge the termination of their employment by making:
- an unfair dismissal application if the reason for the dismissal is harsh, unjust or unreasonable
- a general protections claim if the reason for the dismissal is another protected reason
- an unlawful termination claim
- a claim under a state or federal anti-discrimination law.
Mental health and sick leave
Alot of employees are taking time off for mental health days. This is apart of serious issues of depression, anxiety and related illnesses. Many employers simply don’t believe you when you take this time off. They cannot see it, therefore they don’t believe it. If you are diagonised and or have a doctor’s certificate then the employer has no choice but to accept the situation. If they don’t this will be considered discriminatory behaviour and the employer can be sued in the various tribunals and commissions.
However some employeees don’t help themselves and a perception problem with your employer may be formed. Sick days seem to frequently occur on a Monday or Friday before the weekend. Before and after public holdays for sick leave is common. A sick day on employees birthdays is routine for many or “a sickie” for race days or footy grandfinals is not unusual. Be careful is all i’m saying, you want your employer to treat you with respect, the same goes for the employer.
Conclusion to Medical certificate Dismissed for not providing one?
I hope you enjoyed “Medical certificate Dismissed for not providing one?”, and it was helpful, being on sick leave is stressful. Your always welcome to give us a call, we at A Whole New Approach P/L, are not lawyers, but experienced workplace advisors, we have been presenting employees since 2004, whether it is a unfair dismissal, general protections, an investigation, redundancy, all Fair work Australia issues, whatever. Casual employment, workers rights, discrimination.
We are happy to give free advice 1800 333 666 call now.
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