By Charles Power

To exercise the entitlement to sick leave, the Fair Work Act 2009 (Cth) (FW Act) provides the employee must give his or her employer evidence that “would satisfy a reasonable person” that sick leave is being taken for this reason.

The kind of evidence an employee must give to take paid sick leave can be explained by a modern award or enterprise agreement applying to the employee and his or her employer.

However, if you have a right under a modern award or enterprise agreement to require an employee taking sick leave to provide a certain kind of medical evidence and/or provide it in particular circumstances, the FW Act requires that you exercise that right reasonably.

This was confirmed by the Federal Court recently in Australian and International Pilots Association v Qantas Airways Ltd [2014] FCA 32.

This decision concerned a clause in an enterprise agreement that provided:

“if a flight crew member reports sick on the same day that he or she is contracted for duty or on the following day, the Company may require the flight crew member to produce a medical certificate or other evidence of unfitness for duty.”

The Court ruled that the provisions in the FW Act and enterprise agreement were not the exclusive record of the employer’s rights to require an employee to provide medical evidence.

The Court determined an employer has a right, in addition to those in the FW Act or industrial instrument, implied by law into the employment contract to require an employee to provide sufficient medical information, and if necessary, require the employee to attend a medical examination to procure that information.

The right to this information was necessary, according to the Court, to allow the employer to comply with its statutory work health and safety obligations, namely:

• to ascertain whether the employee’s injury or illness flows from some failure of the employer’s duty to provide a healthy and safe workplace; and
• if so, to enable the employer, to remedy the situation as soon as practicable and ensure an employee who has been previously unfit for work can return to work safely.

The Court also stated that the employer’s right to this information was necessary to allow the employer to make its own business arrangements to adjust for the impact that the sick leave caused on it. The Court observed in the case before it, it would have been “quite unrealistic” to expect the employer to be left with no ability to obtain more information about the present and likely future fitness of the employee on extended sick leave, given the “uninformative medical certificates” it had received told the employer nothing about how to plan for the employee’s absence or return to work.