Absence from work note inadequate for absence from court


"Sick leave" stamp and pills

An absence from work certificate obtained from a pharmacist has been deemed “plainly inadequate” to obtain an adjournment from the Migration Review Tribunal, now the Administrative Appeals Tribunal.

Nyarna Kyaw Swa sought a review of the decision to refuse him a Medical Treatment Visa; on the day he was to appear at the review hearing before the Tribunal, he said he “suddenly got very sick” at around 9am.

He attempted to get a medical certificate to provide when seeking an adjournment, but two general practices nearby proved to be fully booked.

“I then went to a pharmacist to get some medication,” Swa wrote in an affidavit. “The pharmacist at Health 1 Pharmacy provided a medical certificate for me.

“I was shocked to hear the Migration Tribunal had made a decision without me. I did not get an opportunity to present my case.

“I believe it was unfair and unreasonable to refuse my request for an adjournment.”

But the pharmacist’s certificate was considered to be “plainly inadequate”.

“Mr Swa’s affidavit made it plain that he knew that a medical certificate would be required in order to found an argument for an adjournment of the Tribunal Hearing,” the Court found.

“Even before contacting his representative he apprehended that he would require a medical certificate, seeking a medical certificate from not one, but two, medical practices, and being unable to obtain one by reason of not being able to obtain an appointment.

“Ultimately, he obtained the Pharmacist’s Certificate. Although the Pharmacist’s Certificate stated it was issued by a ‘Registered Health Practitioner’ for the purposes of s.240 the Workplace Relations Act 1996 (Cth) (“WR Act”) that provision has been repealed. There is no equivalent provision in the WR Act’s successor the Fair Work Act 2009 (Cth).

“The pharmacist’s certificate did not say what the medical condition was that Mr Swa was said to suffer from. Nor did it say why Mr Swa could not attend a hearing in person, or, given the offer made by the Tribunal, by telephone.

“The paucity of information and the inadequacy of its content justifies the Tribunal Decision.”

“This is no reflection on the capacity under the Fair Work Act for pharmacists to issue valid absence from work certificates,” says a spokesperson for the Guild.

“This particular case related to the acceptability of an absence from work certificate when the absence was not from work, but a hearing.”

The Court decided that leave ought to be granted to Swa to discontinue the amended Judicial Review Application, and he Swa should costs of $4,778.

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