When an employee has seemingly taken too many ‘sickies’ without a genuine need, what can an employer do?
For employers covered by the national system of employment laws including companies, an employee is entitled to sick leave (personal leave under the Fair Work Act) when he or she “is not fit for work because of a personal illness, or personal injury”.
This means when an employee is unfit for work, you cannot prohibit them from taking personal leave. Likewise, you must not penalise or take disciplinary action against an employee for taking personal leave. Such action violates section 340(1) of the Fair Work Act and exposes you to the unique risks from an unlawful adverse action claim.
So, what can you do?
You can insist on strict compliance with the added notice and evidence requirements for personal leave. In terms of notice, this must be given as soon as practicable and advise the employer of the expected period of leave. In terms of evidence, an employee must provide you with evidence that satisfies a reasonable person of the genuine need to take personal leave. Typically, this includes a doctor’s note or a statutory declaration.
If an employee fails to comply with these notice or evidence requirements, his or her absence from work is unauthorised. In this case, you may refuse an employee the claimed paid personal leave.
This ‘black letter’ approach can be applied after an employee takes personal leave. Conversely, this approach can be applied in advance of an employee taking personal leave, by developing an appropriate employment contract or company policy. For example, in our template employment contract for electrical employees, clause 10.4.2 provides:
The Employee is to submit a medical certificate or statutory declaration for any personal leave the Employee takes in excess of two consecutive days (paid or unpaid) or as requested by the Company.
If an employee produces a doctor’s certificate or statutory declaration which you dispute on reasonable grounds, you may require the employee to attend a doctor’s appointment examining their fitness for work. Given you would be directing the employee to attend the appointment, you must pay the employee for time spent at the doctor’s appointment at the employee’s ordinary hourly rate. Additionally, an employer must pay for the appointment cost.
If this doctor’s appointment reveals an employee is in fact fit for work, you may direct them to return to work.
If an employee takes personal leave and fails to provide the known notice and evidence requirements, you may issue a written warning. If, following the written warning, the employee again falls short of personal leave requirements, you may take further disciplinary action which may in certain circumstances, justify termination of employment.
As with any disciplinary action, the above steps carry an unavoidable degree of risk. The employee can, for instance, allege the written warning and/or termination was undertaken because he or she took personal leave. To mitigate this risk, the written warning should be carefully worded, focusing squarely on the employee’s failure to meet the notice and evidence requirements for this leave. Through all verbal engagements with the employee, you should also take all reasonable steps to preclude the perception (accurate or otherwise) of taking disciplinary action because he or she took personal leave.
In summary, an employee applying for what may appear to be, excessive personal leave, requires considered action. You should contact ECA Legal as this issue arises, ensuring your response is both remedial and risk averse.
Disclaimer: This summary is a guide only and is not legal advice. For more information, call ECA Legal on (08) 6241 6129 or email firstname.lastname@example.org.