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FWC gives guidance on employees providing backdated medical certificates

In The Maritime Union of Australia v DP World Sydney Limited, the Fair Work Commission considered the ability of the employer to unilaterally reject backdated medical certificates based on the wording of an applicable enterprise agreement.

The Union asserted that the term ‘backdated medical certificate’ related to a certificate ‘which had been falsely dated so that the date that appeared on it was earlier the date on which the medical practitioner examined and made the certificate’. The employer argued that the phrasing referred to a certificate which certified an illness prior to the date that the practitioner examined the person and completed the certificate.

In the dispute, the Commission sided with the employer’s interpretation and also gave some general insight into how an employer’s rejection of a backdated medical certificate will be viewed.

The Commission referred to the wording contained in section 107 of the Fair Work Act 2009, which contains the requirement for an employee to provide notice of their absence on personal leave.  The Commission noted that rejecting backdated medical certificates for purposes of denying a person access to paid leave benefits would be contrary to the Act.

Particularly relevant for all employers were the following comments of the Commission:

“…any disciplinary action taken against an individual on the basis that the employer had rejected a retrospective medical certificate would proceed upon an unstable foundation. The employer may have some difficulty accepting as a general proposition, that a medical practitioner could certify an illness for a period before any examination of the individual occurred. However, the adoption of a unilateral rejection of retrospective medical certificates represents something of a dangerous intrusion by the employer into an area which, with respect, it has little expertise.”

Aitken Legal recommends employers seek legal advice before rejecting a backdated medical certificate and/or taking action against an employee as a result.

Lisa Aitken is an accredited specialist in workplace relations law and the principal of Aitken Legal, a law firm specialising in employment law for employers. www.aitkenlegal.com.au. The information in this column is intended as a guide only.  Liability limited by a scheme approved under professional standards legislation.

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