Friday 29th April 2022 from 9am

Wills & Estates Senior Associate Debbie Sage will join Robyn Hyland to talk about the importance of planning for end-of-life care and what options are available.

Having a Sickie After Melbourne Cup Day?


The Race that Stops the Nation: Employees and Medical Certificates, the Real Cost of Melbourne Cup Day to Australian Businesses

The running of the 2015 Melbourne Cup is an historic day in the nation’s racing history and part of our modern day culture. In Victoria, the public have the benefit of a public holiday for ‘Cup Day’ but not so in the other States and Territories.

For those workers fortunate enough to have employers who support the Melbourne Cup, in many cases they are allowed to take leave for Melbourne Cup Day or alternatively, there are various lunches and functions held in the workplace so that staff can relax and watch Australia’s most famous race. The fact that the race jumps at around lunch time is another great reason for “the boss” to put on lunch and drinks for the employees and party on after the race has run.

On the other hand, there are many service industries and other occupations where they do not have the good fortune to be able to take the day off or even to watch the race at their workplace. It has become part of our Australian culture that many people attend their local race course or some type of function to celebrate Cup Day and to have a flutter on the Cup race. There are Office Sweeps, Calcuttas, Quinellas, Trifectas, First Fours and the old fashion $1 each way bet. For those lucky enough to back the winner of the Cup or even get the elusive Trifecta or First Four, there are celebrations and boasting rights for the next 12 months. The running of the Melbourne Cup race is an infectious event that reaches many people who may only have one bet per year – it is on the Melbourne Cup!

However, there is a serious side to the Melbourne Cup race which is often overlooked. It is estimated that employees taking “sickies” jumps by about 25% on the Wednesday following the Melbourne Cup (this does not take into account the significant amount of people who also have a sick day or annual leave day for the actual Cup Day itself). Whilst it would seem blatantly obvious that people having a sick day after Melbourne Cup Day are taking advantage of their employer (particularly if they over indulged and were lucky enough to back the winner of the Cup or get the trifecta!), it appears that this is not a bar to people having the day off after the Cup. This raises the question as to whether an employer would be within their rights to terminate the employment of someone who has simply taken the day off after the Melbourne Cup because they have a hangover or some other self induced condition.

From a legal stand point, in most cases a medical certificate from an employee cannot be challenged unless it has been concocted by the Medical Practitioner or in circumstances where it is unreasonable to provide such a certificate. This is a very difficult issue to establish on the part of an employer, as their only way of proving this would be to take the matter to a hearing and call the Doctor to give evidence. It is almost impossible to prove otherwise, even in circumstances where the employee has advised other staff or to representatives of their employer that they have taken the day off or are simply feeling under the weather as a result of celebrations the day before.

A case before the Fair Work Commission in 2013 held that a medical certificate supplied by an employee was valid, even though he told his foreman that he was taking the day off to go to the races for the Melbourne Cup. When his foreman challenged this, he stated that “well I will go home sick then”. He presented the next day with a medical certificate. The Court found that even though he had stated his intention to the foreman, the medical certificate was prima facie evidence that he suffered from a medical condition and could not be challenged unless the Doctor was called to give evidence. See VAN DEN ENDEN v BECHTEL CONSTRUCTION (AUSTRALIA) PTY LTD – BC201374022

The upshot of this is that it is very difficult for employers to challenge medical certificates submitted by their employees, even under circumstances where it is clear that they have obtained a medical certificate in order to support their sick day without a bona fide medical condition. Employers need to be vigilant in relation to their record keeping of discussions held with their employees if they are to have any hope of challenging a medical certificate. From the employee’s point of view, it is important that they obtain proper medical certificates from their treating medical practitioners wherever they have genuinely suffered illness and cannot attend their place of employment.

On a lighter note, it would appear that most employees would support having a National Public Holiday for Melbourne Cup Day. However, it appears that the bigger problem is people having the day off on the Wednesday after the Melbourne Cup itself. Let’s forget about the legal issues and concentrate on the most important question on everyone’s lips: who is going to win the Cup?

Steve Hawkins, experienced race caller and 4TAB radio announcer has provided the following tips for the Melbourne Cup:

  1. Criterion (2);
  2. Gust of Wind (24);
  3. Fame Game (3);
  4. United States (22).

Good Luck to everyone having a flutter on the Cup and please don’t celebrate too hard if you have a win. Just make sure you are not part of the 25% increase in sick days the day after the Cup!

Anyone having any employment related issues, please contact Amanda Heather on 07 5506 8245 or email or Freecall 1800 621 071.

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Charles Lethbridge - Partner - Commercial Litigation

Charles Lethbridge

Commercial Litigation

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The contents of this article are considered accurate as at the date of publication. The information contained in this article does not constitute legal advice and is of a general nature only. Readers should seek legal advice about their specific circumstances. 

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