With numerous public holidays looming in the coming months and the Christmas holiday season fast approaching; many businesses may be faced with employees taking unauthorised absences the day before or after a public holiday.
Akyra’s clients often ask what they can do if an employee takes unauthorised absences the day before or after a public holiday;
- If the employer has to pay the employee for the public holiday?
- What action can employers take?
Here are some things for you to consider…
Does the employer have to pay the employee for the public holiday where an employee takes unauthorised absences the days before or after a public holiday?
There is nothing in the Fair Work Act (FWAct) to suggest an employee forfeits their entitlement to payment for a public holiday if they take an unauthorised absence on the working day before or after a public holiday.
Under the FWAct (s116), an employer must pay an employee at the employee’s base rate of pay for the employee’s ordinary hours of work on the day or part-day. Base rate of pay is the employee’s ordinary rate of pay excluding incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts. This means if a public holiday falls on a day the employee is regularly rostered to work, the employee is entitled to payment for that day.
While such a term was common in awards and agreements prior to the introduction of the FWAct, the right of an employer to deduct payment for a public holiday in this circumstance has generally been removed from modern awards. For example, there are no terms in the Manufacturing and Associated Industries and Occupations Award 2020 that would allow the employer to deduct payment for a public holiday where the employee is absent the day before or after a public holiday without reasonable cause.
While an unauthorised absence before or after a public holiday (particularly if there is a pattern of absence) may be grounds for taking disciplinary action against the employee, the employee would still be entitled to payment for a public holiday that falls on a day the employee normally works.
What action can an employer take if an employee takes unauthorised absences the days before or after a public holiday?
An employee is expected to request any form of leave and negotiate this with their employer, in a reasonable manner in line with the business policies and procedures – e.g. annual leave or unpaid leave.
An unauthorised absence before or after a public holiday (particularly if there is a pattern of absence) may be grounds for taking disciplinary action against an employee, and an employer has the right to request the employee provide a medical certificate or statement for the absence period.
The Fair Work Act 2009 (s107(3)) provides that the employee must, when requested by the employer, give the employer evidence that would satisfy a reasonable person that leave has been taken for the appropriate reason. The Explanatory Memorandum to the Fair Work Bill 2009 (para 415) stated ‘it may not be reasonable on every occasion of personal illness for an employer to require an employee to produce a medical certificate. However, in the case of an absence extending beyond a short period or repeated absences on particular days (e.g. before or after a weekend or public holiday), it may be reasonable for the employer to request a medical certificate.
An absence of two working days may be considered a short period. Evidence other than a medical certificate may be reasonable in those circumstances.
Understanding personal leave legislation
The Fair Work Act 2009 (Cth) makes it clear personal leave can only be taken where an employee is not fit for work because of their own personal illness or injury (section 97(a)). Whether personal leave is appropriate will depend on each individual circumstance; the employee’s fitness for work being the determining factor.
Employers should also remain conscious of an employee’s entitlement to carer’s leave in circumstances where an employee is required to care for or support a member of their immediate family or household (section 97(b)).
Furthermore, in determining whether an employee may take personal leave, employers should refer to any applicable modern award, enterprise agreement or employment contract/agreement, which may define an employee’s personal leave entitlement in more favourable terms than the National Employment Standards (NES).
Akyra’s key takeaways
- An employee is expected to request any form of leave and negotiate this with their employer, in a reasonable manner in line with the business policies and procedures.
- Any unauthorised absence, including before or after a public holiday (particularly if there is a pattern of absence) may be grounds for taking disciplinary action against the employee.
- The right of an employer to deduct payment for any unauthorised absence, including a public holiday in this circumstance has generally been removed from modern awards.
NEED MORE INFORMATION?
Akyra can help your business to assist and support all your questions and concerns related to personal leave. Please contact Akyra on 07 3204 8830 or book a free 30-minute consultation for an obligation-free conversation.
Disclaimer – Reliance on Content
The material distributed is general information only. The information supplied is not intended to be legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.