Dealing with a sick employee

Employers can require employees to provide medical certificates for sick leave absences which explain more than just that the employee has a “medical condition”.

Many employers would have had the experience of employees presenting medical certificates to cover absences from work which have little or no detail about what, in fact, is the illness and more importantly whether there are any restrictions on the employee’s return to work.

A recent decision of Fair Work Australia has demonstrated that employers do have some legitimate right to require the employee to provide more information, especially in cases where the absence has been for a lengthy period.

Mr Petkovski was employed by SMS Management and Technology Ltd. Mr Petkovski went on sick leave in June 2009 and submitted certificates from his doctor stating that he was being treated for a medical condition and was unfit to attend work. A series of certificates in similar terms were issued during a period of approximately 20 weeks, and the employee was absent from work for that time.

The employer commenced efforts to communicate with the employee to determine when he might be able to return to work and what limitations there might be on the performance of his full duties. This communication was formalised in a letter to the employee in September, in which the employer issued a “lawful and reasonable direction” that Mr Petkovski get his doctor to provide the information sought by the employer. The purpose of seeking the information was to enable SMS to ensure that it was in a position to meet its obligations to ensure a safe workplace under the Victorian Occupational Health and Safety Act.

Subsequent correspondence warned the employee that a failure to provide the information may result in the termination of his employment. He refused to do so and instead offered to undergo an examination upon his return to work. His employment was terminated in November 2009.

In determining the employee’s unfair dismissal claim, FWA decided that the employer’s concern about its OHS obligations were reasonable and that the direction to the employee to provide the relevant medical information was indeed a reasonable and lawful direction. The Tribunal found that “steps taken by SMS and the information they sought were reasonable to ascertain the capacity of Mr Petkovski to return to his pre-injury position…”

The termination of his employment was not unfair.

The lessons for employers:

• Employers need to be conscious of their OHS obligations to employees who have been on long-term absence because of illness. Employers also need to consider the welfare of other employees in the workplace;
• An employer is entitled to a reasonable amount of information which will enable it to ensure that the employee is capable of returning to work, and that he or she returns to work in appropriate conditions.
• Especially in cases of long-term absence, a medical certificate that simply states that the employee has a “medical condition” can be insufficient.
• Employers should not treat this decision as a “blank cheque” to terminate sick employees, but as a clarification of what an employer can do to ensure it has all the right information to enable appropriate decisions based on genuine OHS requirements.

Peter Vitale is the principal of CCI Lawyers.