Sick Leave – a Regular Issue

In a recent newsletter we advised in relation to an employee taking sick leave to avoid disciplinary proceedings. However, we often get other questions about sick leave and its limitations, and how it can be misused or even abused. Here are two matters we have had to recently deal with.

1. The employee has used all their personal (sick) leave but are still unable to return to the workplace?

If an employee has used all their personal (sick) leave and still need time off the employer should ask the employee if they want to use some of their accrued annual leave so they are still receiving an income whilst recovering.

It is the employee’s choice as to whether they want to use some of their annual leave and it is not for the employer to make that decision.

We had a case where the employer started paying out the employee’s annual leave for a prolonged absence and the employee complained about it. The annual leave had to be recredited. If the employer pays out the annual leave without the employee’s consent it can be a breach of the Fair Work Act.

If both sick leave and annual leave have run out then it can become unpaid leave. There is no limit on how long an employee remains on unpaid leave, but the employer should be careful and not automatically think that the employment can be terminated. The legislation sets out minimum periods of absence and to termination the employee could breach the legislation.

For prolonged absences it is best to get advice. Andrew can assist in managing long term absences and the steps to take.

2. The employee takes sick leave immediately after being refused annual leave.

This occasionally happens and often arises when an employee arranges and books a holiday without getting approval for leave. In such a case if there’s clear evidence that the sick leave is not legitimate, the employee could face disciplinary action.

However, employers can’t claim that just because the employee wasn’t home in bed for the period of the sick leave that the employee is not actually sick. Sick leave simply means the employee is too unwell to be at work and carry out their normal tasks and duties.

If the employer does not agree to the employee’s request for annual leave and the person then claims sick leave, if there is evidence to support that the sick leave isn’t justified, disciplinary action can occur.

If you have any questions about personal leave, particularly sick leave please contact Andrew for advice.