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VIC Sick Leave and Medical Certificate - What to Do?

Discussion in 'Employment Law Forum' started by maryanne galley, 22 May 2016.

  1. maryanne galley

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    We have an employee who requested 1-day sick leave after having a mole removed from their face.
    We are a building company and did not have any work that week so we requested that the employee take the rest of the week off from accumulated RDO's after the sick day (3 x RDO's).

    The following week the employee sent us their hours with a medical certificate for 3 sick days instead of the RDOs. We paid that after discussing the case with his doctor - who stated that there was a risk of infection so the extra days were warranted.

    The following week, we had no work and asked him to take a week's annual leave (he has 5 weeks accrued). When we received the next week's email from him, they sent a doctors certificate for another 5 days.

    Is this legal and how can this be challenged? Do we just have to suck it up and pay him? Should we get another doctor's advice as to whether he was entitled to the 8 days work to have a mole removed? Redundancy plus his leave. He is just trying to play the system and our business for whatever he can get.

    What should we do? This all seems very unfair but not sure where to go for help.
     
  2. Sophea

    Sophea Well-Known Member

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    Hi Maryanne,

    The general rule is that medical certificates should be taken as evidence of illness and must be accepted unless there is sound evidence, (as opposed to suspicion) to the contrary. You may however lawfully direct an employee to undergo a medical examination where they have been absent for a long period of time, have had numerous unexplained absences, or where there are genuine safety concerns about them working.

    However, there are cases where an employee has obtained a medical certificate but the employer has obtained evidence that the employee was actually attending a social event on that day and the court has determined that the employer had grounds not to accept the medical certificate and pay sick pay, such as in this case: http://www.austlii.edu.au/au/cases/cth/FMCA/2008/152.html
     
  3. maryanne galley

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    Thanks Sophea for your advice. I have since had confirmation that the employee actually worked the last 4 days of the sick leave. I just need to getting the confirmation in writing (though he apparently was being paid in cash). Therefore we will be offering him holiday pay for those days instead. Do you think this is the best thing to do to keep everyone happy.
     
  4. Serge Gorval

    Serge Gorval Well-Known Member

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    You really should consider introducing a company policy employee handbook.

    FYI, any leave taken and supported by a medical cert or statutory declaration should be processed through as personal leave.

    As far as periods of downtime be careful not to infringe award conditions. I assume the EE is award covered?
     
  5. maryanne galley

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    Thanks, Serge,

    The employee is award covered. He gave us a medical certificate for the leave last week but because he worked the Tuesday to Friday for another party are we right to assert that he is unable to receive this as sick pay.

    I read the case referred to above in Sophea's answer and the court found that because the employee was not sick and doing another activity that the employer was correct not to accept the certificate for those days.

    Our employee said he could not work for us because he was sick but could work for another business? Surely we are not infringing award conditions?
     
  6. Serge Gorval

    Serge Gorval Well-Known Member

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    With the issue surrounding pay and entitlements, what evidence have you got to challenge his medical certificate, and, of course, you're at liberty to withhold entitlements but consider the pragmatic consequences of the 3 days.\.

    If he's got accrued leave saved up, there's nothing stopping him to take further leave, and you will be forced to pay. Don't make mountains out of mole hills

    No modern award allows you to stand down employees, instead take a look at FAIR WORK ACT 2009 - SECT 524Employer may stand down employees in certain circumstances
     

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