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Your rights and obligations regarding sick leave

By Charles Power on November 2nd, 2012

Workplace Bulletin

Here at the Workplace Bulletin, we get a lot of questions about sick leave.

It seems many of you get confused about exactly what your rights and obligations are when it comes to this tricky issue.

But the question we get the most is “what can I do about employees who take too much sick leave?”

Disciplining employees about taking too much sick leave is very complex area laden with potential legal risk and therefore, there are a number of things you need to consider before doing so:

1.  Firstly, you need to ascertain what governs the rules regarding the taking of sick leave for the employee concerned. These might be contained in an enterprise agreement covering the employee. Or they might be contained in the National Employment Standard (NES) of the Fair Work Act (FW Act). Most modern awards simply refer to the NES.

2.  Any rules or requirements in policies and contract cannot be stricter than the applicable provisions in the NES. Remember, the NES prevails over the employment contract and any policies. For example, you might have a rule that all employees must inform their supervisor of sick leave at 9am each day. However, the NES provides that an employee must only give notice of sick leave as soon as practicable, which may or may not be after the leave has started.

Another example: You might have a rule that medical certificates must be supplied for every sick leave absence. However, the NES provides that an employer may only require an employee to provide evidence of unfitness for work that would satisfy a reasonable person. It may not be reasonable to request a medical certificate to be supplied for single day absences unless they happen on particular days (e.g. every Friday or Monday).

3.  Under the NES, an employee does not have the right to take the paid sick leave unless he or she:

  • gives the employer notice of sick leave as soon as practicable;
  • tells the employer the expected period of the leave; and
  • if the employer requests, provides the employer with evidence of unfitness for work that would satisfy a reasonable person.

Stay tuned for next Wednesday’s Bulletin. I’m going to go over when you can discipline or dismiss an employee for reasons associated with taking sick leave.

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