We often receive questions about the level of “evidence” an employee must provide if they are taking sick leave (see our earlier blog). A post COVID era twist on that question is whether an “online medical certificate” is sufficient to access sick leave entitlements.  

While it will ultimately depend on the circumstances, the FWC has confirmed in a recent decision that an online medical certificate will not “trump” all other circumstances when determining the real reason an employee was absent from work. 

What is an online medical certificate and why are they problematic? 

The Fair Work Act 2009 (Cth) provides that if an employee takes sick leave they may be required by their employer to provide evidence that would satisfy a reasonable person that they are unfit for work due to personal illness or injury. 

There are an increasing number of providers that will issue a medical certificate from a general practitioner after the person submits an online questionnaire regarding their symptoms and pays a fee. That is, the person never speaks with or sees the general practitioner to verify their symptoms.  

Employers may be skeptical about the genuineness of the purported illness where there has not been any kind of verification with a doctor.  

Background to the decision 

In this unfair dismissal claim, the employee had been dismissed from his employment primarily on the basis that he was untruthful about being unwell on a Friday and the following Monday.  

At the time, the employee told the employer that he was “not feeling up to coming into the office” on the Friday and on the Monday, he indicated “still in a bit of discomfort today and don’t think I can hack taking public transport.” The employee claimed sick leave for both absences and for the Monday absence provided a medical certificate from an online provider of medical certificates. That provider issued a medical certificate without any telehealth consultation. At the time, this was accepted by the employer. 

However, it later came to the employer’s attention that the employee had caught a plane to Adelaide on the Thursday evening to meet up with friends to watch AFL, visit the beach and generally socialise on the Friday and over the weekend. The employee then shared a car trip home with his friends on the Monday. 

When asked about the new information, the employee maintained he was unwell and denied any wrongdoing. 

FWC findings  

The FWC did not find the dismissal harsh, unjust or unreasonable. 

One of the employee’s contentions as to why the dismissal was unfair was that the medical certificate should conclusively demonstrate that he was unfit for work that day because of illness. The FWC accepted that it was the employee’s genuine (albeit misguided) belief he was entitled to take sick leave. 

However, the FWC disagreed: 

That certificate is simply one aspect of the overall evidence. The fact that [the employee] obtained the certificate for 8 April 2024 in a purely online forum, with no direct consultation by the practitioner who signed the medical certificate diminishes the evidentiary value of that certificate. 

Can I refuse to accept online medical certificates? 

Online medical certificates should not be rejected outright. However, they can be treated with caution, particularly if there are other circumstances that diminish the evidentiary value that the certificate would otherwise have. 

Where an employer is presented with an online medical certificate and:

• the employee has not consulted with a general practitioner to obtain the certificate; and  
• there is evidence which contradicts the employee genuinely being unfit for work,  

it may be reasonable to raise those concerns and ask for further evidence before processing the absence as sick leave.