Employee Rights

Daily Archives: June 21, 2021

Sick Leave A Workplace Guide

If, your sick, your sick, dispute what your employer says, don’t be bullied. Listen to your doctor, not the employer. Dismissed, lodge a claim immediately.

Sick leave, a workplace guide

What does sick leave mean? This article is an important tool, in understanding your workplace rights. Now what is it? 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). You cannot be dismissed for being ill or injured.

Time off to care for an immediate family

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.

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. A household member is any person who lives with the employee.

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.

It is unlawful to be dismissed if your sick or injured. If your employer challenges you, send the doctors certificate immediately. Don’t have one?, get one. Send a photo of you injured if you can. Make it personal. Being dismissed is as personal as it gets.

What do I do if I need to take sick/personal/carer’s leave?

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 if your able to, or as soon as you can

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. Keep in touch with your Employer, sometimes this is not easy, don’t end up with dismissal for abandonment of employment, or a resignation by the employer because they cannot find you or haven’t heard from you. Sometimes Employers seize on these sort of issues to justify your dismissal, they just want to get you “off the books” for taking to much sick leave, your seen as an inconvenience to them.

Don’t be bullied or harassed into working from home. You may want to help out of your feeling ok, its up to you.

What can my employer do? Can they punish me?

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 at 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).

Serious Misconduct

Some employers will dismiss you for serious misconduct. While you are away they go looking for past incidents, issues to justify not getting you back. You have been a bully, you were inappropriate towards female staff. You say well why hasn’t anybody previously come forward? The employer responds that’s because they have all been too scared while you were here to come forward. Be careful, its logical the longer your off work the more it becomes a problem. Particularly in small business where they want/ see it as they have to move on.

Keep the employer informed, try and maintain the relationship. Don’t end up dismissed through miscommunication.

Can I be dismissed or receive a warning 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.

Employees who take a period of sick leave that is paid the whole time are protected from dismissal regardless of how long they’re on leave. However, employers must still follow the appropriate rules for carrying out a dismissal and employees may challenge the termination of their employment by:

  • making an unfair dismissal application if the reason for the dismissal is harsh, unjust or unreasonable
  • making a general protections claim if the reason for the dismissal is another protected reason, or
  • Lodging a claim under a state or federal anti-discrimination law.

In short, an employer may have grounds to terminate / dismiss an employee for calling in sick. A dismissal involving absence from work and whether this is justified, can be risky and it is best to seek professional advice on such cases. You cannot stay away from your workplace for ever, be aware of this. You may be eligible to lodge a unfair dismissal claim, or a general protections claim. If your employer has terminated/ sacked/ dismissed, bullied, harassed you, in your employment because of your sick leave or personal leave, please call us on 1800 333 666 for a free and confidential discussion.

Sick Leave A Workplace Guide

I hope this article was helpful to you. We are A Whole New Approach P/L, we are not lawyers but the nations leading workplace advisors. Give us a call, we are here to help, we keep it real, honest, prompt. We are bases in Victoria, but we work on a national basis.

Anything to do with Fair work Australia, workers rights, abandonment of employment, casual employees call us now.

Call 1800 333 666

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Dismissed for Anti-Lockdown Protest


Dismissed for Anti-Lockdown Protest

On 1 June 2021, a woman who breathed on a camera crew at a Melbourne protest has been dismissed from her job in aged care with her actions deemed “unacceptable”. Dismissed for Anti-Lockdown Protest is a great topic to discuss, please read on

Right to protest and not get dismissed

Dismissed for Anti-Lockdown Protest, these are troubling emotional times. We live in a democracy, but you still have to consider your job and employers position, particularly what goes up on social media. On Saturday 29 May 2021, a large group of anti-vaccination and anti-lockdown protesters gathered at Flagstaff Gardens in the CBD of Melbourne. Which was on the second day of Victoria’s lockdown. As police officers tried to move the protesters on. One woman was dragged away after she breathed on a camera crew. It was later revealed the woman worked for Baptcare Aged Care.

Following the protests, Baptcare put out a statement saying the employee’s behaviour did not match up with its core values. That the woman is no longer an employee of the organisation. In other words she’d been dismissed. Further, Baptcare stated that they do not condone the actions of this employee. Which were unacceptable, and out of step with their expectations as an employer, and the expectations of the community more broadly.

In light of this news report, many employees are now wondering whether they can be dismissed for attending any sort of protest and whether this out-of-hours conduct is a valid reason for dismissal?

Can I attend protests during work-hours?

Throughput the years, many people have attending protests and rallies regarding climate change. There have been overwhelming environment concerns that the public has and what appears to be relative inaction by the government, many feel that they have no choice but to head to the streets to protest. From school children to CEO’s, individuals have turned out in droves – but what happens if a protest is scheduled during working hours?

Does your employer have any power to stop you from going? The right to dismiss you? In 2019, the Fair Work Ombudsman has warned people they can’t simply not show up to work in order to attend planned climate protests across Australia.

The right to assemble

Legally, it has been recognized by Australian common law that the citizens of Australia have the right to participate in public assemblies of their particular concern or interest. The right to assemble is codified in the Summary Offenses Act of 1988. Such right is also expressly stated in the Peaceful Assemblies Act 1988. However, such public assemblies are governed by laws which are meant to ensure that such events are peaceful and do not erupt into violent emotional displays of interest.

While the personal right to assemble exists, it does not necessarily transcend a person’s obligation to their employer during working hours. As such, the Fair Work Ombudsman has issued a statement to all Australian citizens that you cannot simply leave work, or not show up for work, to attend a public protest pertaining to your particular beliefs or interests.

Workplaces are different now, careful your not dismissed

Notice of absence

The law is clear, persons wishing to be absent from work to attend to a personal situation or interest. Must give their employer notice of the absence and receive permission for the same. You then must use your own personal time or holiday time to attend the event. In addition, it is important to check the personal policies of your particular employer.

If your employer has set out the proper manner in which to request personal leave. You must adhere to their policies. In the event that an employee does not follow the procedural requirements of their employer. For the taking of personal leave to attend a public protest. The same employer-driven sanctions can be levied against the employee as in any other personal, vacation or sick leave occurrence.

Are my rights protected in the workplace?

Some employees may argue that their right to protest may fall under industrial action, but it has been held unlikely. Under section 19 of the Fair Work Act 2009 (Cth), industrial action means action of any of the following kinds:

  • the performance of work by an employee in a manner different from that in which it is customarily performed. Or the adoption of a practice which results in a restriction, or limitation on, or a delay in the performance of work
  • a ban, limitation or restriction on the performance of work by an employee. Or on the acceptance of or offering for work by an employee
  • a failure or refusal by employees to attend for work. Or a failure or refusal to perform any work at all by employees who attend for work, or
  • the lockout of employees from their place of employment by the employer.
  • you cannot be dismissed for lawful inductrial action

Industrial action does not include the following:

  • action by employees that is authorized or agreed to by the employer of the employees
  • action by an employer that is authorized or agreed to by, or on behalf of, employees of the employer, or
  • action by an employee if:
    • the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety.
    • the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work. Whether at the same or another workplace, that was safe and appropriate for the employee to perform.

Unions will often argue that a public political rally doesn’t have an “industrial” character. Because it isn’t about the relationship between the employer and its employees. There is no demand made by employees or the union that the employer can satisfy. There are some cases where the courts have held that behaviour is not “industrial action”. If there is no “industrial” motivation. A union may rely on this to say that an employee walking off the job to express a political opinion cannot be “industrial action”. Even when organized by a union.

Dismissed for protesting, don’t join him

Leaving work to attend a political protest can still be “industrial action”

Helpfully, the Fair work Commissions predecessor tribunal and the Federal Court have both held that leaving work to attend a political protest can still be “industrial action”. There is no broad exception which applies to a rally because it is occurring in a “political” context. The FWC will always examine what has occurred in each case to see whether it meets the definition of “industrial action”.

However, the employer’s position will be stronger if it can show that the union has sought to negotiate any industrial issues in the same context. For example, if there has been a request that the employer release staff to attend the protest. Provide transportation, and/or pay the absent employees’ wages for all or part of the lost time. This will make it easier to show that the action being taken by employees has taken place in the context of a demand made of the employer.

Important lesson for employees

If you do decide to attend a protest. It is important to remember to be respectful at all times and follow the directives of police officers or crowd control authorities. In the event that you are caught on camera behaving in a certain way. (i.e. the woman breathing on camera crew during the anti-lockdown protest). Bear in mind that employer may not be impressed with your actions and it is clear that despite being off-duty, your actions may reflect poorly on your employer.

As a result, it is not uncommon for your employer to see your actions in a poor or negative light. If the employer believes that your actions have harmed or risked their reputation, an employer may have a valid reason to dismiss an employee.

Dismissed for Anti-Lockdown Protest

We love a challenge, make the call

Dismissed for Anti-Lockdown Protest

Feel challenged by your Employer?, going to be dismissed?, or sacked, or worse dismissed?, discriminated against? For all workplace and related matters, your welcome to give us a call on 1800 333 666. Get some advice, its free. We are A Whole New Approach P/l, we are not lawyers, but the nations leading workplace advisors. We are here to help you. Looking for a lawyer, call us first, explore your options. We work in all states. Victoria, NSW, QLD, WA, SA, TAS, NT.

Termination of employment issues, diversity in the workplace, workplace investigations, abandonment of employment. We are leaders workplace commentary, standing up for workers rights, give us a call.

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