Navigating the challenges of personal (sick) leave
While it can be a financial challenge for businesses, personal leave is always going to be inevitable in the workplace (and with the impacts of COVID in recent years, this has certainly been the case).
We all get sick, and employees have a legal right to take personal leave. With the exception of casuals, workers are entitled to paid personal leave when they can’t work because of a personal illness or injury. This can include stress and pregnancy related illnesses.
But what proof do workers need to provide when they take personal leave? And what happens if an employee takes a “sickie” and you suspect they aren’t actually sick?
Do employees need proof that they’re sick?
Generally, the answer is yes.
The Fair Work Act states that, if required by an employer, workers must provide “evidence that would satisfy a reasonable person”.
While some enterprise agreements or awards might stipulate the specific type of evidence required, an employer is generally entitled to specify the type of evidence they are willing to accept – e.g. a medical certificate.
In some cases, however, employers may suspect an employee is not actually unwell – despite having a medical certificate.
Faking it?
Taking a “sickie” when you’re not really sick – this is something many people have probably done at some point, even if they don’t want to admit it.
Numerous cases heard by the Fair Work Commission demonstrate many workers do fake “sickies” – and this can be reasonable grounds for termination.
There have been multiple cases in which employees have lost their jobs for submitting false or fraudulently altered medical certificates to their employers.
Other workers have been open with their managers about misusing personal leave – e.g. to attend a football match which an employee stated they were “emotionally unfit” to miss.
The development of medical certificate subscriptions also poses a challenge for employers, with workers being able to obtain medical certificates without actually seeing a doctor – a topic we examined in a previous blog.
So how should you respond if you know or suspect that an employee is misusing personal leave?
How should you approach the situation?
For employer’s these types of situations can be difficult to navigate and having clear policies in place regarding employee entitlements and obligations can be helpful in preventing the misuse of personal leave.
Challenging a suspected phoney personal day(s) can be challenging for a number of reasons. Doctors are not required to specify the relevant illness on a medical certificate, and they cannot provide further information to an employer without the express consent of the worker in question.
If an employee declines to provide such consent, there is an “implied contractual term in employment contracts” which does allow an employer, “depending on circumstances, to request further medical information”.
As the team at PCC Lawyers note, “it is on this basis that employers may, if a reasonable person would not be satisfied that an employee is injured or ill, demand further specific information or instruct an employee to attend an independent medical assessment.”
While it is worth following up on cases where it suspected an employee is misusing personal leave, it is important to be cautious and not rush to judgment.
It is also crucial to remember that, under section 352 of the Fair Work Act, an employer must not dismiss an employee because they are temporarily absent from work because of illness or injury.
As the team at PCC lawyers observe, “it is vital a business has sufficient evidence (rather than just mere suspicions) to establish an employee has misused personal leave prior to taking any action against them, otherwise it could end up in protracted disability discrimination proceedings or facing claims that it unlawfully terminated an employee’s employment.”
Akyra’s key takeaways
- With the exception of casuals, workers are entitled to paid personal leave if they are unfit to work due to illness
- Employers are entitled to request proof to support an employee taking personal leave
- Having a clear policy in place which outlines employee entitlements and obligations regarding personal leave and supporting evidence can help to avoid confusion and difficult situations
- If it is suspected that an employee is ‘chucking a sickie’ and misusing personal leave, it is best to proceed with caution – gather the facts before taking action
NEED MORE INFORMATION?
Akyra can help your business to assist and support all your questions and concerns related to managing sick leave in the workplace. 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.
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Networking, Clients, Workplace Behaviours, Bullying, Discriminatory And Harassment Employment Agreement, Retraint Of Trade Clause, Termination, Termination Notice, Unfair Dismissal, Employment Contrct, Casual Workers, Work From Home, Reasonable Management Action, Dismissal, Superannuation, Award Wages, Award Wage Increase, Superannuation, Budget, Training, Upskilling, Public Holidays, Personal Leave
Sources:
https://www.pcclawyers.com.au/managing-personal-leave/, https://www.fairwork.gov.au/leave/sick-and-carers-leave/paid-sick-and-carers-leave, http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fwa2009114/s107.html, http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FMCA/2008/152.html?query=, https://www.akyra.com.au/blog-view/medical-certificate-subscriptions-are-your-258
