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NSW Unpaid Leave - Can Employer Override Doctor's Certificate?

Discussion in 'Employment Law Forum' started by Jmalek, 10 January 2017.

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  1. Jmalek

    Jmalek Active Member

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    I notified my workplace with a doctor's certificate that I would be needing 5-6 weeks unpaid leave to care for my wife, child and myself. My employer has now suspended me upon my return stating the leave was not approved.

    I provided the certificate before I left.

    Can my employer override a doctor's certificate? Can I go back to the employer and be reinstated now?
     
  2. Rod

    Rod Well-Known Member

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    There appear to be two wrongs here.

    1. You thinking a doctor's certificate for 5-6 weeks unpaid carer's leave doesn't need approval. If the doctor's certificate was for your illness, you have a legitimate ground for complaint, but the wording of your post implies it was not your illness.

    2.The employer thinking he can suspend you for taking unapproved leave. He may be able to sack you for an unauthorised absence, but unless your contract/award/eba allows it, he can't suspend you without pay.

    If he does sack you, a claim for unfair dismissal may be made depending on the circumstances but there is no guarantee you'd win the case.

    See what you can negotiate for a return to work. Explain the home situation, maybe you thought you had approval, maybe it was a serious life threatening condition and you had no choice, and see how he/she responds.
     
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  3. Jmalek

    Jmalek Active Member

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    Thanks for your response. I tried to speak to my HR dept and got nowhere there on the employer's side. Now my suspension has been extended for another 7 days.

    I really do not know what to do.

    Fair work advised me that I do not require approval for any period of personal leave ie carers/sick, as long as I provide sufficient evidence, ie med cert stating period of absence.

    I have complied with my employers ea. Employer now wants personal information on where i was, what i was doing and credit card statements to justify my location. I refused stating how and where I choose to overcome my families personal medical issue is none of their business.

    Can someone tell me if I have a valid point to refuse and my standpoint in this issue
     
  4. Rod

    Rod Well-Known Member

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  5. Jmalek

    Jmalek Active Member

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    Yes, I notified Fair Work that it was 6 weeks leave and they also checked my ea which states a med cert is required for personal leave.

    My workplace doubts validity of cert and want to ask more questions to my doctor, and are asking me personal questions as posted before
     
  6. Jmalek

    Jmalek Active Member

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    Unpaid personal leave was not pre-approved but I did meet before leaving supplying personal medical info on the reason for my leave.

    It is paid suspension but I want to work again as a good portion of my wages is in overtime. I just had 6 weeks unpaid. I do not want to lose out on more now.
     
  7. Rod

    Rod Well-Known Member

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    You may have a claim for adverse treatment.

    Unless there is something in your employment agreement or award, you do not need to provide any other evidence beyond the medical certificate.

    Your employer can challenge the certificate by requesting a second opinion (at their cost), or provide evidence your activities are not consistent with the carer's leave (eg going on an overseas holiday probably doesn't qualify as legitimate carer's leave). I'm wondering if other workers know more than you'd like your boss to know.

    The employer can contact the doctor to confirm the certificate is valid and has not been altered. FYI, medical certificates are a legal document.

    Only you can say how hard you can push back without jeopardising your job.
     
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