KEY POINTS:
The sickie has been around for as long as the employment relationship itself. Most people have taken a sickie at one time or another, and so society at large tends to have a fairly indulgent attitude to the practice, where it is only done on an occasional basis.
To employers, however, reducing the number of sickies is a constant battle.
In the past, the courts have been reluctant to question the validity of medical certificates. After all, who are they to doubt the professional opinion of a medical specialist? Slowly, however, they are showing more readiness to look behind such certificates and question whether the employee really is sick.
This is partly due to what seems to be a widespread acceptance that medical certificates are often granted in circumstances where the employee probably could attend work. Also, websites such as www.doctorsnotestore.com, which offers fake certificates for a payment of $59.99, show that not all medical certificates are what they seem.
In Australia, a court recently upheld the dismissal of an employee who took sick leave to attend an Australian Football League game in Perth, despite his having presented a medical certificate. The employee rather unwisely told a number of colleagues that he would be attending Kevin Sheedy's final game as coach of the Essendon Football Club. He went to see a Dr Salter, and told him of his emotional distress at the thought of Sheedy no longer coaching. Dr Salter issued a medical certificate for the day of the game.
The Court said that a medical certificate from a qualified medical practitioner within their area of expertise should generally be accepted as proof of illness for employees taking sick leave. However, Mr Anderson's situation was considered an "exceptional case" given the evidence he was not actually sick, and that he was not the subject of any "meaningful diagnosis" from the doctor. The Court noted that Dr Salter had previously been disciplined by the medical authorities for improperly issuing medical certificates, and found that the employee had wilfully absented himself, and was guilty of misconduct. His claim was dismissed.
This decision suggests that employees will not always be able to rely on a medical certificate. Eventually this might even hurt www.doctorsnotestore.com. It's hard to see too many people shedding tears if that particular business doesn't stay around.
Greg Cain
Greg Cain is an employment lawyer at Minter Ellison Rudd Watts.