29/06/2022

Sick Leave and Absenteeism

Sick leave or personal leave as it’s more correctly known under the Fair Work Act 2009 (Cth) (FW Act) is an essential aspect of employee workplace entitlements. In fact, it’s one of eleven principles under the National Employment Standards.  As an Employer you must be aware of your employees’ rights to take sick leave. This isn’t limited to situations on when and how they can take it. It includes when you can request the appropriate evidence, what that evidence may look like and what you can do if you believe an Employee is falsely taking leave or not complying with your processes, i.e., disciplinary action.

Whilst the term “Sickie” was coined in Australia, there has been a shift away from this type of behaviour. It is important to understand that Employee absenteeism continues to pose a substantial cost to employers through both wages and reduced productivity.  So how does a business effectively navigate sick leave entitlements and manage employee absenteeism?

Entitlements to Personal Leave (Sick Leave)

Personal and carer’s leave entitlements are governed by the FW Act. There might be additional inclusions in an employment contract, modern award or enterprise agreement that need to be considered too.

In most cases personal or carer’s leave may be utilised by employees where they are:

  • Not fit for work because of personal illness or personal injury (sick leave).
  • To provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because of:
  • a personal illness, a personal injury affecting the member; or
  • an unexpected emergency affecting the member (carer’s leave).

It should be mentioned that ‘immediate family’ only includes a spouse, de facto partner, child, parent, grandparent, grandchild, or sibling of the employee (or those same relatives of the employee’s spouse or de facto partner). It doesn’t include, for example, cousins, aunts or uncles, great-grandparents or great-grandchildren. The definition also doesn’t include pets, as much as we may consider them our children and part of our family.

Notice and evidence required for personal leave  

Notice should be given by employees of the period or expected period of personal leave as soon as possible. Employers may request that such notice be given before the start of a shift or work period, but where this isn’t possible, it’s to be expected that the employee will notify the business when they can. This notice can be either verbally or in writing and it is generally up to the business to determine how this is to be communicated.

Employers are entitled to request evidence to confirm that any personal leave is legitimately being taken for the reason specified. A signed medical certificate or a statutory declaration are typically sufficient forms of proof. Employers must not reject certain types of evidence (for example, pharmacy-issued medical certificates) unless it is reasonable to do so and the Employer has previously communicated this policy position to the business. Alternative evidence may be required depending on the circumstances surrounding the leave being taken.

An employer isn’t the employee’s treating medical practitioner and shouldn’t challenge or reject the medical evidence unless there are reasonable suspicions of fraud. Employer concerns regarding the validity of medical certificates should be addressed by seeking confirmation from the authorising doctor. If verification by the doctor is provided, no further action should be taken. If it cannot be verified then the Employer has further rights to investigate the situation.

This might mean that the Employer requests permission from the employee to speak to their treating practitioner about the nature of the illness or injury and its impact on their employment, but a business should avoid accusing a doctor of falsely diagnosing a medical condition. After all an Employer has a duty of care to ensure that they are providing a safe and hazard-free work environment and this means understanding an potential issues that might jeopardise that, being an Employee who is unwell.

When is disciplinary action appropriate?  

The FW Act protects employees from adverse action such as terminations and performance management plans where that action is taken because:

  • the employee is absent for a temporary period (three months) due to illness or injury.
  • the employee has exercised a workplace right (including a right to take sick leave).
  • of the employee’s physical or mental disability.

Navigating where disciplinary action should and can be taken must be approached carefully, especially concerning employees who have taken a period of personal, or carer’s leave. Disciplinary action may be appropriate where an employee has failed to follow the employer’s communicated procedures for taking leave or is unable to provide evidence as requested. Now Actually can provide assistance and guidance where disciplinary action may be reasonable. There can not be a one fits all approach here.

Where does this leave employers? 

Employee absenteeism has a flow-on effect causing a loss of actual wages as well as decreased productivity in the workplace. There can be impacts on employee morale where a worker is viewed as not putting in or exploiting their leave entitlements. High absenteeism can sometimes be a symptom of a greater cultural issue such as poor leadership, workplace bullying, or lack of employee engagement. Which requires a whole different approach to tackle.

While it’s important to allow for instances where Employees may genuinely need to access personal and carer’s leave, continuously high rates of employee absenteeism may be indicative of an extensive workplace issue that needs to be addressed.

Personal Leave Balances

As per the FW Act, all Full Time Employees accrue 10 Personal Leave days per Annum, this is pro rata for Part Time Employees. This entitlement can be used once it has been accrued but there is nothing to nothing to prevent employers from allowing an employee to use their personal or carer’s leave in excess of their eligibility, but businesses should be careful about setting precedents for the rest of the workforce.

Personal Leave is not payable upon termination and resignation, so it must be noted that if an Employee is allowed to go into a negative balance that this will need to be taken into consideration upon their departure and adjustments made to their final payout.

In summary, Personal Leave is a workplace right for Full Time and Part Time Employees. Whilst Employers need to empathetically understand their Employee’s position, they are allowed to question their actions if they start to see specific trends or patterns around the frequency and use of personal leave. Having a strong Personal Leave policy and procedure around the management of Personal Leave will ensure that there is transparency from both parties. The onus of responsibility then lies with both parties. If you have cause for concern around a particular Employee and their Personal Leave or perhaps you need your Personal Leave policy reviewed, please reach out to us at contact@nowactually.com.au