Magazine article New Zealand Management

Employment Law: Dodgy Medical Certificates - Can You Ignore Them?

Magazine article New Zealand Management

Employment Law: Dodgy Medical Certificates - Can You Ignore Them?

Article excerpt

Byline: Greg Cain and Jennifer Jones

An apple a day might keep the doctor away, but some employees actually want to take a day off work. The answer - the time-honoured sickie.

Proving illness is generally either unnecessary or relatively straightforward. The Holidays Act only requires employees to provide a medical certificate if they are absent from work for a period of three or more consecutive calendar days, which does not capture many sickies, as they tend to be one- or two-day absences.

Employers can require proof of sickness or injury in cases involving less than three days where they have reasonable grounds to suspect that the sick leave is not genuine. But that doesn't solve the problem, because medical certificates are easy to come by. Earlier this year, Australian and New Zealand doctors were outraged at doctorsnotestore.com, a South African company selling fake doctors' certificates for "approx $67.99" over the internet.

It is just as easy to get a real certificate from a qualified GP if the recent case of Anderson v Crown Melbourne Ltd (3 March 2008) is anything to go by. Anderson, a self-proclaimed football fanatic, took a day's sick leave to attend an Australian Rules football game in Perth. Prior to taking the day off, he had tried without success to rearrange his shift, and had even told colleagues that he would just take a sickie if he couldn't get time off. He was warned by a manager that he would be in serious trouble if he followed through with his plan - which he did.

He saw a doctor, told him of his distress at possibly missing the game, and was issued with a medical certificate. When he returned to work the next day he was suspended for misusing sick leave, and after an investigation, was dismissed.

Anderson challenged his dismissal by arguing that the employer could not go behind the doctor's certificate, as that should be enough to prove the genuineness of his absence. The Court looked at the evidence and concluded 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, 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. …

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