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Foreign medical certificates are evidence of incapacity

Excerpt from this article first published in Human Resources Magazine, Issue 157 - 22 July 2008

In a recent unfair dismissal case, the AIRC found that it was harsh, unjust and unreasonable to dismiss an employee for failing to return to work in circumstances where the employee was overseas and had provided a foreign medical certificate for her illness.

In this case, the employee made an application for four weeks annual leave to visit her frail mother in India. The employee left the country before her leave was approved and the company only approved one week of annual leave, citing operational reasons. Whilst the employee was overseas she became ill and was later hospitalised. The employee obtained an Indian medical certificate that recommended bed rest.

The AIRC found that the employee had made the company aware of her illness and inability to return to Australia from the outset. The AIRC determined that there were no pressing operational reasons to deny the employee's application for four weeks annual leave. Further, the AIRC determined that the company had unreasonably assumed that medical certificates from overseas were not proper evidence of a medical incapacity and rejected the Company's argument that the medical certificate did not rule out the employee flying back to Australia. It was concluded that the Company had unreasonably refused the employee's application for sick leave. The AIRC found that the employee was "entitled to sick leave from the date of the presentation of her certificate until the end of that certification".

The AIRC ordered the company to pay to the employee the sick leave for the duration of the medical certificate and 13 weeks compensation. The AIRC reduced the compensation that the employee would have otherwise received because of the employee's contribution to her own difficulties, such as departing Australia before her leave application was approved, and poor attempts to find new employment.

This case is currently on appeal.

HR Tip:

This case suggests that employers have an obligation to accept medical certificates from foreign doctors. Accordingly, employers should take caution when considering whether or not to terminate an employee for abandonment of employment if that employee has produced medical evidence of an illness or injury. In any event, the employee can sign a statutory declaration if the medical certificate is not accepted.