Marina Leikina, Associate, Gordon Legal
Nurses, midwives and personal carers may feel pressured by their employer to provide medical certificates when they use their entitlement to paid personal leave.
This article is intended to clarify what evidence an employee is required to provide to their employer when they are unwell and unfit to attend work.
The entitlement to paid personal leave
All employees, other than casual employees, are entitled to paid personal leave.
According to the minimum safety net entitlements in the Fair Work Act 2009, an employee accrues 10 days of paid personal leave per year of service, based on their regular working hours.
An employee can take paid personal leave if she or he is unfit for work or has to provide care to an immediate family member.
Enterprise agreement often provide for more than 10 days personal leave per year.
What do I need to tell my employer?
According to the Act, an employee must give notice to the employer as soon as practicable that they intend to take personal leave. The employee also must, if required by the employer, provide evidence that would satisfy a reasonable person that the leave was taken because the employee was unfit for work. The Act does not require employees to provide a medical certificate.
However, an enterprise agreement, employment contract or employer policy may detail the evidence required when taking personal leave.
Often an employer will require employees to provide a medical certificate as evidence that they have been unfit for work due to illness/injury when they took personal leave. Alternatively, an employer may accept a statutory declaration. Some employers may not require any evidence. Employer can decide what evidence is required. However, the requirements should be reasonable.
Medical certificates
Obtaining a medical certificate to show you have been unfit for work may be inconvenient and expensive. Some employees may be tempted to tempted to provide a false certificate.
However, if a nurse, midwife or personal carer provides a medical certificate to their employer that is false the consequences can be very serious. It is not difficult for the employer to establish that a medical certificate is not genuine.
Such conduct would usually be grounds for dismissal. For nurses and midwives, it may also impact their registration with the Nursing and Midwifery Board of Australia.
The Code of Conduct for Nurses requires nurses to act honestly, ethically, legally and with professional integrity. According to the Code, nurses ‘should not engage in unlawful behaviour as it may affect their practice and/or damage the reputation of the profession’. The same requirements apply to midwives.
The actions of nurses and midwives outside the performance of their work duties may be relevant to their registration. If a registered practitioner has provided a false medical certificate to their employer, the Board may form the view that the practitioner was willing to act deceptively, dishonestly and unethically. The Board views such conduct as significantly below the accepted standards of the profession and may take action including imposing conditions on a practitioner’s registration.
Creating false medical certificates, in some serious circumstances, may lead to criminal charges.
What if my employer responds badly to employees taking personal leave?
If you believe that your employer treats employees who take personal leave unfairly or unreasonably, you should address this by raising it with your ANMF organiser. Paid personal leave is an important workplace right and employees should feel able to exercise it without reproach.
Remember that nurses and midwives have a professional responsibility to maintain their physical and mental health and to practise safely. This means that they should only attend work when they are fit to do so.
There may be good reasons why an employee may not be able to provide a medical certificate in support of their absence from work.
However, recalcitrant or unfair conduct by the employer, does not justify taking the step of providing false medical certificates.
