Unfit for work: Medical certificates vs. Statutory declarations

Managing evidence for personal / carer’s leave is a vital compliance task for all businesses.

Under Section 107 of the Fair Work Act 2009 (Cth), employers have the right to request evidence supporting an employee’s absence from work. However, getting this wrong can expose your business to disputes regarding paid leave entitlements, inconsistent policy application, or claims of adverse action. 

To remain compliant, any evidence provided must be evidence that would satisfy a reasonable person that the leave was taken for a permitted reason.

Understanding Lawful Evidence

A common misconception among businesses is that a medical certificate is the only acceptable form of proof for a sick day. In reality, the Fair Work Act does not restrict acceptable evidence solely to medical certificates. 

Both medical certificates and statutory declarations are recognised as valid forms of evidence. A business cannot automatically reject a statutory declaration simply because it prefers a medical certificate; doing so will create a non-compliance risk. 

Ultimately, the evidence must be sufficient to satisfy a reasonable person.

The Two Categories of Evidence

1. Medical Certificates

A medical certificate is evidence issued by a registered medical or health practitioner confirming their opinion that an employee is or was unfit for work during a specific timeframe. 

1. Managers must ensure the certificate explicitly covers the exact dates of the absence. It must clearly note that the employee was ​“unfit for work” due to illness or injury. 
2. In accordance with privacy expectations, a certificate does not need to contain a specific medical diagnosis or detail the employee’s illness. Employers should focus solely on whether the document confirms the employee was unfit for work during the relevant absence period. 
3. Certificates can be issued by registered health and medical practitioners — including pharmacists, dentists, physiotherapists, and psychologists.
   

2. Statutory Declarations

A statutory declaration is a written statement declared by the employee to be true and correct, executed before an authorised witness. 

• Lying on a statutory declaration carries serious legal consequences. Because of this, it is considered robust and valid evidence. 
• However, it also needs to satisfy a reasonable person and should include details of symptoms (not diagnosis) which made them unfit, and why it is being provided instead of other more compelling evidence (unable to travel to doctor, not available appointments, prohibitive cost of appointment, etc). Simply stating that the employee was unfit for work is unlikely to satisfy a reasonable person.

When can employers request a medical certificate?

While blanket rules insisting on medical certificates for every absence carry legal risks, there may be circumstances where a statutory declaration would not be evidence that satisfies a reasonable person:

• If an employee demonstrates a consistent pattern of taking sick leave around weekends or rostered days off. 
• During periods of extended or long-term leave, a statutory declaration is likely to be insufficient. 

Next Steps for Businesses

Employers should adopt a practical and consistent approach to leave management. 

• Review your workplace policies, employment contracts, and any applicable awards or agreements to ensure they clearly state when evidence is required. 
• Ensure policies avoid any blanket refusals of statutory declarations. 
• Apply the ​“reasonable person test” to evaluate whether the provided evidence fairly supports the reason for the employee’s leave. 

For support reviewing leave policies, managing evidence requirements, or responding to disputed personal or carer’s leave evidence, contact the SA Business Chamber Business Advice Hotline on 8300 0106. 

Disclaimer: All information in this article is of a general nature only and is not intended to be relied upon as, nor to be a substitute for, professional advice