In a recent decision before the Fair Work Commission (“FWC”) involving a general protections claim, constructive dismissal, and jurisdictional objections, discussion turned to the type of evidence which may be requested by an employer while an employee is on personal leave. 

Background and findings  

By way of brief background, the relationship between the parties unravelled when the employee returned from parental leave and a dispute arose over the employee’s duty allocation. The employee, who was now working part-time, was not undertaking all of her pre-parental leave duties and viewed the reduction in the scope of her duties as unfair.  

Tensions between the employee and her employer came to a head in July 2024, after the employer raised concerns about the employee’s trustworthiness regarding a lunch organised by the employee for a departing colleague; a lunch which she had been expressly instructed not to arrange. After a meeting where these issues were raised, the employee immediately took annual leave, citing wellbeing concerns. While on annual leave, the employee was certified by her doctor to remain on personal leave for a period of two months.  

During this period of personal leave, communications between the employee and her employer deteriorated. Specifically, the employer had “demanded” to speak with her doctor and requested new medical certificates be provided from an alternative doctor (who was not her regular practitioner).  

In reviewing this conduct, the FWC noted that the employer appeared “to be of the misguided view that this is a reasonable and lawful direction to make of [the employee]”.  

The FWC made it clear that the employer’s questioning of the validity of the medical certificate was unfounded in circumstances where the employer was “not medically qualified to make such an assessment about the validity of a medical certificate”. 

In spite of such observations, the FWC ultimately found that the deteriorating relationship and loss of trust between the parties may have motivated the employee to resign, but that she did so at her own initiative. Therefore, the FWC found that there was an insufficient causal connection between the employer’s conduct and the employee’s resignation, and the application was dismissed.  

Key lessons for employers 

This case is an important reminder about an employer’s entitlement to request evidence regarding periods of personal/carer’s leave.  

While an employer will have the right to request evidence under the FW Act when an employee takes personal/carer’s leave, this evidence need only convince a reasonable person that the employee was genuinely entitled to take the leave.  

The FW Act does not prescribe the type of evidence which may be provided, nor does it stipulate any required content. This case makes it clear that when a medical certificate is provided, it is not reasonable to question the validity of that medical certificate (particularly without contrary substantial evidence). The case also further affirms the fact that it is generally not considered reasonable or lawful for an employer to demand to speak with an employee’s medical practitioner, and that such discussions must be expressly agreed to by an employee.