Doctor Who? FWC issues cautionary warning about medical certificates

Medical certificates and reports from medical practitioners play an important role in the employment relationship.

Employers rely on the opinions of medical practitioners for assurance that employees are medically fit for their role and they are not being required to perform tasks that might put their health and safety at risk.

Such documents are also used to provide legitimate evidence that an employee who takes personal (sick) leave is, in fact, not fit for work because of an illness or injury – evidence which employers are entitled to require from employees under the Fair Work Act 2009 (Cth).

Unfortunately, in many cases, medical certificates and reports obtained from treating doctors will be brief, only vaguely setting out the employee’s condition and its effect on their capacity to work. This can create difficulties for employers, particularly when such medical evidence suggests that there is a causative relationship between the employee’s medical condition and their employment.

Employers may be reluctant to require more satisfactory evidence from an employee about their condition for fear of a complaint that the employer is encroaching on the employee’s privacy or that the employer is in some way harassing or discriminating against the employee.

However, such information is necessary for an employer to obtain so that it can understand an employee’s capacity for work and whether there needs to be any adjustment to the employee’s employment to enable them to work safely and without risk.

Encouragingly, in the recent decision of Kordek v Marsh Pty Ltd [2020] FWC 6972, the Fair Work Commission (FWC) has acknowledged this difficulty presented to employers, and cautioned against accepting at face value a medical certificate or report that lacks cogent and detailed remarks about the employee’s condition and a management plan.

In this matter, an employee had provided medical certificates from her general practitioner and her treating psychiatrist to support her claim that she had been a victim of bullying and harassment which was causing her stress and anxiety. The treating psychiatrist’s report advised that the employee “is presently affected by symptoms and is unable to attend to her usual responsibilities at work”. The employer had sought clarification as to the employee’s capacity for work and the employee responded that such a request was discrimination and harassment and itself posed a significant risk to the employee’s health.  

The FWC stated at [185] “unless there is cogent, detailed specialist evidence from a psychologist or psychiatrist (which the above quoted letter is not), a GP’s cursory acceptance of whatever the patient tells them, and the psychiatrist’s brief letter of 5 March 2020, should be treated with some caution.”

Lessons for employers

The FWC’s remarks in this decision provide support to employers that they do not have to take at face value the brief opinion of a medical practitioner in relation to an employee’s condition simply because it is signed by the practitioner.

Employers are entitled to seek further information in relation to an employee’s capacity for work where there is a legitimate concern that there may be a risk to the employee’s health and safety in the workplace.

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.

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