Tuesday, 29 April 2014

Sick and Tired: How to deal with an employee on extended sick leave

Employee entitlements: Personal Leave

Under the National Employment Standards (NES), employees are entitled to 10 days of paid personal leave per year. The NES allow an employer to ask an employee for a medical certificate for each period of personal leave taken, or as otherwise provided in the contract or enterprise agreement. The medical certificate does not need to state the cause of the illness – it must simply provide evidence that would satisfy a reasonable person that the employee is taking personal leave for that reason.

Case study: Australian and International Pilots Association v Qantas Airways Ltd

In this case, an employee pilot covered by an enterprise agreement submitted a medical certificate stating that he was suffering from clinical depression and would be unfit for duties for 3 months. A further certificate was submitted which simply stated that the employee “is suffering a medical condition and will be unfit for normal work” for a further period of 3 months.

Prior to the expiration of the latter three month period, Qantas requested from the employee a written report from his treating doctor, clearly indicating the employee’s diagnosis, capacity to return to work and anticipated timeframe. The employee’s Union subsequently got involved, alleging that Qantas had no lawful basis to require a medical report, which was refuted by Qantas.

Qantas made further unanswered requests for the medical reports and advised the employee that it may take disciplinary action against him if he failed to provide the information. The Union subsequently commenced proceedings.

What the Court decided

The issues the Court had to determine were:

  1. Did the employee, pursuant to the enterprise agreement, have a workplace right to only provide a medical certificate where requested to provide a medical certificate or other evidence of unfitness for duty?
  2. Did Qantas take adverse action against the employee by threatening disciplinary action if he did not provide the report? and
  3. Did Qantas make the threat because the employee had exercised a workplace right?

The Court held that Qantas had an implied right to require its employees to provide medical evidence of the kind sought due to the “obligations imposed on Qantas by both the agreement itself and the Work Health and Safety Act”. The Court determined that the “evidence demonstrated that [the employee] could not simply turn up to work one day and expect or demand that Qantas make arrangements to facilitate his immediate return to flying in circumstances where, as here, he had provided his employer with medical certificates that were substantively uninformative about any of the matters Qantas needed to know for its own operational purposes”

The Court held that Qantas did not interfere with the employee’s workplace rights as it had a legitimate ground to seek the information. The Court ultimately held that “it would be quite unrealistic to expect Qantas, an employer, to be left with substantively no right or ability to require a sick employee to provide it with information, of the kind sought here, about the present and future position of a crew member who had been on extended sick leave.”

How can an Employer protect themself?

Keeping in mind the terms of an applicable contract or enterprise agreement, an Employer is able to request further evidence from an employee where it can demonstrate that it requires the information for operational purposes in order to adjust itself due to the impact of an absent employee on its business. However, an Employer may only do so if this is based on a legitimate business ground or proper purpose.

HR Legal can assist you if you require advice about an employee or drafting appropriate clauses in contracts or enterprise agreements.


This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.

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