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Employees calling in sick are an inevitable part of running a business – after all, falling sick is just a part of life. But when an employee frequently takes sick leave or is away for extended periods it can take a toll on your business’ productivity and finances.
Before you do anything, it’s important to understand what your obligations are as an employer. In some situations, firing someone, or even taking disciplinary action against them might be unlawful. This could leave you and your business liable to legal action and some serious civil penalties.
This article will walk you through what the Australian law has to say about sick leave, and give you some tips for managing some of these sticky situations.
What Is Personal/Carer’s Leave?
Sick leave falls into a category of employee entitlements called ‘Personal and Carer’s Leave’, which is provided for by the Fair Work Act 2009 (Cth) (the Act) and the National Employment Standards (NES).
| Personal/carer’s leave is defined in section 97 of the Act as leave taken: ● because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee ● to provide care or support to a member of the employee’s immediate family or household because of: ○ a personal illness, or personal injury ○ an unexpected emergency An employee’s immediate family member includes their spouse or de facto partner, child, parent, grandparent, grandchild or sibling, as well as that of their spouse or de facto partner. |
Who Can Take Sick Leave?
Under the Act, all permanent employees are entitled to paid personal/carer’s leave. This means that casual employees are not included under the Act.
In saying this, all employees – both permanent full-time and part-time employees, and casual employees – can take 2 days of unpaid carer’s leave each time a member of their family or household requires care or support.
How Many Days Of Personal/Carer’s Leave Can An Employee Take Each Year?
Under the NES, employee entitlements to personal/carer’s leave are as follows:
| Type Of Leave | Days Per Year |
| Paid personal/carer’s leave | 10 days |
| Unpaid carer’s leave | 2 days |
| Unpaid sick leave | 3 months |
This may be different if your employees are covered by an award, enterprise agreement, or if your employment contracts offer more generous leave entitlements.
Paid Personal/Carer’s Leave
Each year, full-time employees are entitled 10 days of paid personal/carer’s leave. This entitlement accrues progressively throughout the year, so employees will start earning this type of leave on their first day of work.
For part-time employees, personal/carer’s leave accrues on a pro rata basis based on the number of ordinary hours worked.
If an employee doesn’t use up all of their accrued personal/carer’s leave, their leftover balance will roll over into the next year.
Unpaid Carer’s Leave
If an employee has used up their accrued personal/carer’s leave, they are entitled to two days of unpaid carer’s leave for each time they need to provide care and support to a member of their family or household. Permanent and casual employees can benefit from this entitlement under section 102 of the Act.
Unpaid Sick Leave
Employees may be protected by the Act and the Fair Work Regulations 2009 (the Regulations) in circumstances where they are unable to work due to illness or injury.
This means that you cannot dismiss an employee who has taken sick leave if:
- they have been absent from work for less than 3 months – this can be leave taken consecutively, or on separate occasions, over a 12-month period
- they provide evidence of their illness or injury
How Much Do I Pay In Personal/Carer’s Leave?
As long as an employee has accrued personal/carer’s leave and validly exercises their right to take such leave in accordance with the NES, you will need to pay them their normal hourly rate.
A failure or refusal to make these payments will likely amount to a breach of the Act and expose your business to potential legal action taken by an employee, including civil penalties.
What Are My Options If An Employee Takes Too Many Sick Days?
Workplace Personal/Carer’s Leave Policy
Having a clear workplace policy that deals with personal/carer’s leave can help to set out processes and address a range of issues that may arise in relation to personal/carer’s leave.
For example, your policy may require employees to provide evidence, such as a medical certificate, that personal/carer’s leave has been taken for a legitimate reason.
Importantly, you should avoid requiring employees to produce a medical certificate that gives specific details about any injury or illness, as this may breach their privacy and could even amount to disability discrimination. Under the Act, the evidence would only need to “satisfy a reasonable person”.
Your policy could also outline procedures that your employees should follow to notify you, or any relevant staff, when they intend to take personal/carer’s leave.
Make sure to provide your employees with a copy of your workplace policies and know how to access them at any time during their employment.
Have A Chat To See What’s Up
If one of your employees has taken several days of personal/carer’s leave, you may want to have a chat with them to see what’s up. This can give your worker an opportunity to raise any concerns that might have with you in a safe and confidential environment.
For example, they may have a medical condition that requires reasonable adjustments to be made, or they may feel unsafe or uncomfortable at work due to the bullying behaviour of other colleagues. By identifying these issues, you can make sure you are upholding your obligations as an employer.
In addition to this, you can also let the employee know how their absence is affecting the business. By opening up a discussion, you may be able to find out more information that could help you plan for the future.
It also allows you can strengthen your relationships with your employees and, where possible, work together to find mutually beneficial solutions, such as flexible working arrangements.
Proceed With Caution
Disability Dicrimination
As an employer, you’ll probably be familiar with what you can and can’t do in the workplace, particularly in relation to discrimination laws. All employees are protected from discrimination on the grounds of any disability under the Disability Discrimination Act 1992 (the DDA). This includes:
- total or partial loss of bodily or mental functions, or a part of the body
- the presence of organisms in the body causing, or capable of causing, disease or illness
- malfunction, malformation or disfigurement of a part of the person’s body
- cognitive or learning impairments or disabilities
- disorder, illness or disease that affects thought processes, perceptions of reality, emotions or judgment, or that results in disturbed behaviour
Another thing to note is that the definition of disability under the DDA includes a disability that:
- presently exists
- previously existed but no longer exists
- may exist in the future – such as with genetic predispositions to certain disabilities
If you discipline or dismiss an employee for taking personal/carer’s leave, you could expose yourself to legal action for disability discrimination.
Protection From Dismissal
The Act also protects employees from being unfairly dismissed if they are temporarily absent from work because of an illness or injury.
This means that you cannot dismiss an employee who has taken sick leave if:
- they have been absent from work for less than 3 months – this can be leave taken consecutively, or on separate occasions, over a 12-month period
- they provide evidence of their illness or injury
If you fire someone because they have taken too much time off, you could face legal proceedings, and even civil penalties, under the Act.
Need Help?
Working out the best way for your business to respond when an employee is taking a lot of personal/carer’s leave isn’t always easy, especially when you are a small business.
Our team of expert lawyers are here to help you strike the balance between upholding your employer obligations and taking care of your employees, with your business’ commercial interests.
Get in touch with us at team@sprintlaw.com.au or on 1800 730 617 for free, no-obligations chat.
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