Sick of ‘Sickies’?

By Alexandra Yorston* and Charles Cody, Principal, MST Lawyers

Employer’s rights regarding the depth of information that can be requested of employees taking sick leave may be more expansive after the Federal Court of Australia’s decision in AIPA v Qantas earlier this year.

The case centred on whether a Qantas employee, who had taken extended periods of sick leave, was required to provide information above a generic medical certificate stating that he was ‘unfit for work’.  The Pilots Association argued that requiring such information would amount to a breach of the employee’s privacy.  Justice Steven Rares found that Qantas had an implied right derived from the employment contract to request further information under the circumstances. His reasoning focused on Qantas’ WHS obligations under both the enterprise agreement and law.

In circumstances of extended absences that are of an uncertain or indefinite nature, in order to avoid non-compliance with WHS laws, an employer is entitled to be provided with detail relating to:

• the diagnosis;
• the prognosis;
• the capacity of the worker to return to work; and
• any reasonable accommodations that could be made to facilitate a return to work.

This case serves to highlight the importance of adequately detailed sick leave clauses within contracts of employment. If an employee is not required to provide any more than a medical certificate stating they are unfit for work, employers have little or no means by which to assess the potential WHS issues.  There is a need to provide a balance between the employee’s right to privacy and the employer’s obligation to provide a safe workplace.

Having employment contracts that specifically deal with what will be required in situations of extended sick leave provides clarity for both the employer and employee and may avoid drawn out disputes. Such clauses may also boost employer’s rights when faced with questionable medical certificates or a pattern of absences and serve to combat their occurrence.

For further information relating to sick leave clauses in enterprise agreements and employment agreements, please contact our Workplace Relations team on +61 3 8540 0200 or email the author of this article, Charles Cody.

*Alexandra is a final year law student at Monash University undertaking a clerkship at MST Lawyers