What is Sick Leave

An Employees Guide to
Sick and Personal Leave

What is sick leave?

Sick and carer’s leave (also known as personal leave or personal / carer’s leave) lets an employee take time off to help them deal with personal illness, caring responsibilities and family emergencies. Sick leave can be used when an employee is ill or injured. This illness could be physical or mental (i.e. stress leave).

An employee may have to take time off to care for an immediate family or household member who is sick or injured or help during a family emergency. This is known as carer’s leave but it comes out of the employee’s personal leave balance.

Under section 97 of the Fair Work Act 2009 (Cth), an employee may take paid personal/carer’s leave if the leave is taken:

  • because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or
  • 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:
    1. a personal illness, or personal injury, affecting the member; or
    2. an unexpected emergency affecting the member.

An immediate family member is:

  • a spouse or former spouse
  • de facto partner or former de facto partner
  • child
  • parent
  • grandparent
  • grandchild
  • sibling, or
  • child, parent, grandparent, grandchild or sibling of the employee’s spouse or de facto partner (or former spouse or de facto partner).

This definition includes step-relations (eg. step-parents and step-children) as well as adoptive relations and a household member is any person who lives with the employee.

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How much sick leave should I have?

Under the Fair Work Act 2009 national system, permanent full-time employees are entitled to 10 days of paid personal/carer’s leave per year. Permanent part-time employees and permanent employees with variable hours are entitled to 1/26th of their ordinary hours in paid personal/carer’s leave. Employees roll over any unused time but will not ordinarily receive a payout for unused sick leave once they retire or leave the company (unless the employee’s Modern Award or enterprise agreement provides for differently).

Full-time and part-time employees accumulate sick and carer’s leave during each year of employment. It starts accumulating from an employee’s first day of work and is based on their ordinary hours of work. The balance at the end of each year carries over to the next year.

To calculate your sick and carer’s leave entitlements, use the Leave Calculator on the Fair Work Ombudsman website.

Casual Employees and Sick Leave

Casual workers are often paid a ‘casual loading’ to compensate them for the lack of entitlements they receive, such as paid holiday and sick or personal leave. Casual loading is extra money paid to casual workers over and above the normal hourly rate that full-timers or part-timers get paid in the same job. Casual loading is often also seen as compensation for the uncertainty you have as a casual worker. Many awards and agreements include a casual loading. Modern awards specify a minimum casual loading of 25 per cent. But this may vary depending on your circumstances. Whether or not you should be paid a casual loading will depend on your employment arrangement. To discuss your pay rate and whether your casual loading is correct under the award, you will need to consult the Fair Work Ombudsman.

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Federal Court has changed the landscape on casual employment in Victoria

Recently, the Victorian government has announced a $5 million two-year trial to provide paid sick leave and carer’s pay for casual and insecure workers. Due to this recent court decision, casual workers can, in some circumstances, still be considered a permanent employee for the purposes of certain entitlements regardless of what their contract states and regardless of the payment of any casual loading. In short, the effect of this ruling is that some “casual” employees might be entitled to paid annual leave, personal/carer’s leave, compassionate leave and public holidays.

Once up and running, the “Secure Work Pilot Scheme” will entitle casual workers to five days’ worth of sick and carer’s pay. The two-year pilot will be offered to employees in highly casualised sectors such as hospitality workers, aged care workers, cleaners, security guards and supermarket staff.

However, this decision has been appealed to the High Court for review and thus this may be subject to chance. In the meantime, this decision will potentially have ramifications on an employees’ sick leave, personal leave or annual leave entitlements.

The casual link between adverse action and workplace rights

It is important to note that every employer has different policies and procedures regarding calling in sick. If you are unsure about your employer’s specific rules, there are a number of important tips that employees should be aware of when calling in sick or using their sick leave entitlements.

Ensure you call your employer as soon as possible

This is an important step as it ensures your employer has sufficient time to either cover your shift (if applicable) or allows them to plan ahead in organising themselves and potentially allocating your duties and responsibilities to be carried out by other employees, where possible. For example, if you are unwell on the night before you are due to go to work, it may be wise to message/email your boss that evening and inform him that you are unwell and cannot attend work the following day. Alternatively, contact your employer first thing in the morning. The sooner they know, the better.

Let your team/colleagues know

If you work in a team or as part of a team, it may be courteous for you to inform your team that you are unwell and will not be attending work. This is particularly important if you have a deadline coming up or you are in charge of completing particular tasks that may be time sensitive. Nevertheless, it is important to keep your colleagues in the loop so they do not think that you are just leaving them stranded.

Explain your availability, if any

Due to COVID-19 and working remotely, it is not uncommon for employees to be checking their emails or completing work from home. If you are too sick to go into work (i.e. exhibiting cold or flu symptoms) but you still feel that you could potentially complete some work at home, inform your employer accordingly.

Follow up

Once you are ready to return to work, ensure you follow up with your employer to ask them whether you need to provide any documentation, i.e. a medical certificate for your sick leave or to claim your entitlements.

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What can my employer do if I take sick leave?

If an employee is sick, there is not much an employer can do. However, if an employer has reason to suspect that an employee is abusing their personal/carer’s leave, it’s important you document their behaviour.

Keep a record of when the employee calls in sick including dates, times, and reasons for the absence. As an employer, you can request evidence from an employee to support their reason for calling in sick – for example, a medical certificate.

Generally, a doctor’s certificate has to be taken on face value. That is, if a doctor says the employee is too ill to work, then they’re too sick to work. Although an employer can challenge a medical certificate, the circumstances for doing so are rare.

For instance, an employer may be able to challenge a certificate because it appears fraudulent. If an employee fails to provide requested evidence to support their time off work, they are not entitled to be paid for the absence. However, employers should treat lightly when poking and proving employees for further detail regarding their sick leave or their illness.

An employer can discuss their concerns with the employee and potentially take disciplinary action. (It’s important to note that the employer must also give the employee a reasonable timeframe to produce evidence).

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Can I be dismissed for calling in sick?

In short, an employee can potentially be dismissed for calling in sick. An employee is no longer protected from being dismissed (even if they provide evidence) if:

  • the total length of their absence due to illness or injury is more than 3 consecutive months, or a total of more than 3 months over a 12-month period
  • over that period they’ve only taken unpaid leave, or they’ve taken a combination of paid and unpaid leave.

However, a dismissal involving absence from work, in the form of sick leave or personal leave, can be risky and it is best to seek professional advice on such cases. If your employer has dismissed you from your employment because of your sick leave or personal leave, please call us on 1800 333 666 for a free and confidential discussion.

What can I do if I am dismissed for taking sick leave – General Protections?

Employees who take a period of sick leave that is paid the whole time may be protected from dismissal regardless of how long they’re on leave, but every case depends on its unique circumstances. This is governed under the General Protections Provisions.

For instance, an employee has suffered an injury and thus they are utilising their sick leave entitlements. Now if this injury was sustained at work, the employee must report this to their employer. In addition, the employee can consult their doctor or a lawyer about the option of lodging a Workers’ Compensation claim.

Nevertheless, if that employee has sought medical advice and is told that their injury is temporary, the employer may be breaching provisions under the Fair Work Act 2009 (Cth) if they dismiss the employee. Section 352 of the Fair Work Act 2009 (Cth) states that an employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations. A prescribed kind of illness or injury exists if the employee provides a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within 24 hours after the commencement of the absence or such longer period as is reasonable in the circumstances.

However, as mentioned above, an illness or injury is not a prescribed kind of illness or injury if either

  • the total length of their absence due to illness or injury is more than 3 consecutive months, or a total of more than 3 months over a 12-month period
  • over that period, they’ve only taken unpaid leave, or they’ve taken a combination of paid and unpaid leave.
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Nevertheless. a period of paid personal/carer’s leave (however described) for a purpose mentioned in paragraph 97(a) of the Fair Work Act 2009 (Cth) does not include a period when the employee is absent from work while receiving compensation under a law of the Commonwealth, a State or a Territory that is about workers’ compensation. Thus, it is important to familiarise yourself with your rights regarding sick leave, personal leave and potential dismissal.

If an employer has dismissed an employee and they believe this action was done because of their temporary absence for illness or injury or because they exercised their right to take their sick/personal leave, the employee has 21 calendar days after the dismissal took effect, to lodge an application in the Fair Work Commission. This is a General Protections Application Involving Dismissal (Form F8).

Once an application is lodged, the Fair Work Commission will set the matter down for a conciliation conference, a private proceeding conducted by an independent conciliator. This conference is an informal method of resolving a General Protections dispute in which an independent conciliator will assist the parties in exploring options for resolution and help them to reach an agreement without the need for a formal hearing or court proceedings. If either party objects to a conference, an application for an interim injunction can be made and the matter can proceed directly to court.

To discuss your sick leave or potential dismissal, please call us for a free and confidential discussion.

When is it OK to dismiss an employee on Workers’ Compensation?

As discussed above, temporary absence for illness or injury and taking sick/personal leave entitlements, is protected under the Fair Work Act 2009 (Cth), subject to the amount of time taken off. However, what if an employee has been on workers’ compensation due to illness or injury for a number of months or years and are not protected under the General Protections Provisions? Can an employee on workers’ compensation be dismissed?

It is well established law since J Boag and Son Brewing Pty Ltd v Allan John Button,[1] that it cannot be a valid reason, in an unfair dismissal claim, to dismiss an employee because of an employee’s incapacity to work for an accepted compensation claim. That is because all workers’ compensation law throughout Australia prohibits it within certain time frames or other limitations. In order to determine what the time frame is in your particular state, please consult the WorkCover authority in your particular state.

However, outside of those limitations and time frames, an employee can be dismissed based on their alleged “incapacity”, so long as your employer can establish this. The employer will need to demonstrate that:

  • The employee is unfit for the inherent requirements of their job with reasonable adjustments;
  • They will be unfit for the inherent requirements of the job for the foreseeable future with reasonable adjustments; and
  • Their absence is longer than the temporary absence period under the Fair Work Act 2009 (Cth).[1]

[1] Fair Work Act 2009 (Cth) s 352; Fair Work Regulations 2009 (Cth) (FW Regulations) Reg 3.01.

Sick Leave, Unfair Dismissal Australia

In Victoria, and in many other jurisdictions, there is an obligation period where, to the extent it is reasonable, the employer must continue to offer work or suitable duties. In Victoria, the obligation period is 12 months however, each state and jurisdiction have their own obligation period.[1] Thus, it is important to familiarise yourself with your rights regarding Workers’ Compensation in your respective state.

[1] Workplace Injury Rehabilitation and Compensation Act 2013 (VIC) s 103.

Although you cannot dismiss an employee explicitly for their workers’ compensation claim, it doesn’t mean that you can’t dismiss an employee for misconduct. Yet, in what can only be described as a curious argument, that is exactly the point raised in Morovan v Laverton Cold Storage Pty Ltd.[1] In this case, the employee argued that his dismissal was unfair as he alleged that the employer contravened section 103 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) because the company did not continue to provide him with employment until the end of the 12-month ‘employment obligation period’ following a workplace Achilles heel injury sustained in April 2019.

Furthermore, the employee relied on the authority in J Boag and Son Brewing Pty Ltd v Allan John Button and insisted that “a dismissal may be prohibited by State workers compensation legislation or otherwise unlawful”, in which case it would be “highly likely, bordering on certain, that there could be no valid reason for the dismissal in that event”

Sick Leave, Unfair Dismissal Australia

The employer argued that the employee’s aggressive behaviour towards his colleagues was unacceptable and that it continued even after he was warned about it. Thus, the employer dismissed the employee, indicating this misconduct was a valid reason for dismissal and that s 103 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) is not relevant.

Deputy President Colman held that the employees conduct was of sufficient gravity to warrant dismissal and this was not a disproportionate response to the conduct in question. Deputy President Colman dismissed the employee’s argument that his dismissal is prohibited under J Boag and Son Brewing Pty Ltd v Allan John Button.[1] Deputy President Colman made it clear that the Full Bench was talking about a situation where an employer dismisses an employee because of an inability to perform the inherent requirements of a position.[2]

Obviously, where an employer dismisses an employee for reason of capacity, and the employee has a workplace injury, s 103 may be relevant.[3] But it is not relevant in cases where the reason for dismissal has nothing whatsoever to do with a workplace injury, which is the case here.[4] The employee did not allege that his dismissal is related to his Achilles heel injury or a return to work, and there is no basis in the evidence for any such contention.[5]

The key takeaway from this case is that the valid reason for the dismissal was held to be misconduct and the fact that the employee was on workers’ compensation, was irrelevant for the purposes of determining whether his dismissal was harsh, unjust or unreasonable.

Nevertheless, this may not always be the case. If you feel as though your employer is attempting to dismiss you by arguing you have engaged in misconduct or poor performance but you really believe this is to do with your illness or injury, you may be eligible to lodge an unfair dismissal claim. Employees who believe they have been unfairly dismissed, can lodge an Unfair Dismissal Application (Form F2) to the Fair Work Commission. Please bear in mind there is a strict 21 days after your dismissal takes effect to lodge an application.

If you wish to discuss your dismissal or potential dismissal matter further, please contact us on 1800 333 666 for a free and confidential discussion.

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Discrimination

Dismissing an employee for an illness, injury, sick/personal leave, may constitute discrimination on the basis of disability. Discrimination in employment is when an employer, or an agent of the employer, treats an employee, or a group of employees, less favourably than other employees because of their physical or mental disability/impairment. Discrimination in this context is not limited to a direct and conscious distinction based on an employees’ protected attribute but could encompass indirect discrimination.

Discrimination on this ground is defined and governed under federal discrimination laws, the Fair Work Act 2009 (Cth) and state specific anti-discrimination laws. Some states refer to a disability as an “impairment” under their legislation and so it is important to consult your specific state or jurisdiction regarding whether you have a discrimination claim and what ground it falls under.

How We Can Help you

We are an independent body of workplace advisors and representatives, who specialise in discrimination complaints in all jurisdictions across Australia. We are at all times willing to provide you with assistance, guidance and advice regarding any of the issues discussed above. Please contact us on 1800 333 666 for a free and confidential discussion.

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