Is a backdated medical certificate acceptable?

Is a backdated medical certificate acceptable?
By Paul Munro on 28 September 2017 An employer usually requests that an employee provide a medical certificate which would be considered satisfactory evidence explaining the reason for the absence. However, what is the situation if a medical certificate is dated a number of days after the initial day of an employee’s absence from work?

While a medical certificate is generally considered to be irrefutable proof of an employee’s illness or injury which justifies being absent from work, can an employer challenge the validity of a back-dated medical certificate?

Legislative framework


Medical certificates are legal documents and a medical practitioner who deliberately issues a false, misleading or inaccurate certificate could face disciplinary action under the Health Practitioner Regulation National law. The medical practitioner may also expose themselves to civil or criminal legal action.

Item #.8 of the Australian Medical Association’s ‘Guidelines for Medical Practitioners on Certificates Certifying Illness – 2011’ states that “certificates must be dated on the day on which they were written.

Under no circumstances can this be breached. There may be medical conditions which enable the medical practitioner to certify that a period of illness occurred prior to the date of examination”. It further states that “medical practitioners need to give careful consideration to the circumstances before issuing a certificate certifying a period of illness prior to the date of examination, particularly in relation to patients with a minor short illness which is not demonstrable on the date of examination and add supplementary remarks, where appropriate, to explain any discrepancy."

Exceptions


This means that although a backdated medical certificate breaches the AMA’s guidelines, there are circumstances where a medical practitioner can issue a medical certificate based on the employee’s condition prior to the date of examination.

Meaning of ‘backdated medical certificate’


The Fair Work Commission found in favour of the employer’s interpretation of the term ‘backdated medical certificate’, that is, one certifying illness in respect to a period before the date of examination.

However, the Fair Work Commission sounded a word of warning to employers that have an unqualified policy of rejecting a backdated certificate presented in support of personal leave claims.

Any terms of the employer's policy or the terms of the applicable enterprise agreement, which purported to provide the employer with the unilateral right to reject any and all retrospective medical certificates as evidence for the purposes of Personal Leave would be a term which conflicted with the provisions of  the Fair Work Act (s.107).

See Maritime Union of Australia, The v DP World Sydney Limited [2014] FWC 2682 (24 April 2014).

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