The basics of sick leave

• Full-time employees are entitled to 10 days sick leave per year (pro-rata for part-time employees).
• Employees may take sick or carer’s leave if they are unable to work because of an illness or injury, or if they need to provide care or support to an immediate family or household member (due to illness, injury or an unexpected emergency).
• Employees are obliged to give notice to their employer as soon as practicable and must advise their employer of the period or expected period of the leave.
• Under s 107 of the Fair Work Act 2009 (Cth), employers are allowed to request that their employees give evidence that they took the leave for an authorised reason. Such evidence commonly includes medical certificates or statutory declarations, but there are no restrictions on what type of evidence needs to be produced, as long as it is able to convince a reasonable person that the leave was taken for a permissible reason.

What rights do employers have if an employee is not complying with these obligations?

Many employers face issues with employees taking long periods of leave, not providing notice of when they will be taking leave or for how long, not providing medical certificates, or taking leave when they have no personal leave entitlements left.

Employees are generally protected from dismissal for taking leave when they are sick or injured. An employee is entitled to take as much sick leave as they have accrued as long as they are providing evidence. They are also protected from dismissal if they provide evidence and take unpaid leave for a period of less than 3 consecutive months or less than 3 months in total over the last 12 months.

After 3 months, if an employee no longer has any accrued sick leave entitlements, they are no longer protected from dismissal for their absence, even if they provide evidence. However, employees still have other protections from dismissal.

An employee may be protected from unfair dismissal, if the reason for dismissal is harsh, unjust or unreasonable. Thus we recommend that you must provide procedural fairness to your employees. Employees can also potentially make a general protections claim, if they believe they were terminated for a protected reason, such as a physical or mental disability.

So what can you, as an employer, do?

As an employer, you are allowed to give lawful and reasonable directions, such as requiring medical certificates for taking leave, requesting that employees provide notice when they are taking leave and for how long, requesting that employees provide a clearance to return to work and provide an intended date they will return to work. We recommend you keep clear written records of your requests and maintain contact with your employee throughout their absence to demonstrate that you gave plenty of warnings. It also provides important evidence that you are not warning or dismissing your employee because of their illness, but because they have failed to comply with reasonable directions and as an employer, you have to consider the operational requirements of the business if the employee provides no foreseeable date to return to work. In these situations, we recommend giving the MTA Workplace Relations team a call to discuss the next steps and get assistance with any required documentation.

There are always risks involved when terminating an employee, but we can assist you throughout the process with steps to follow and template letters. For further assistance, please contact the WR Team on 8291 2000 or wr@mtasant.com.au.