Surgery and time off to get a boob job?
Surgery and time off is obvious if it’s an emergency. But what about other surgeries. If you are undergoing elective surgery, including cosmetic surgery like a boob job, you are potentially entitled to use sick leave. However, there are certain conditions you must satisfy, and your eligibility could be influenced by your specific circumstances.
In this article, we explain when you are allowed to take sick leave to cover elective surgery. We also look at a recent case where the Fair Work Commission had to decide if a worker was entitled to claim sick leave for his elective surgery recovery.
And later in the article, we share the story of a Perth hair salon owner who not only allowed her employee time off to get a boob job, but also paid for it.
Am I entitled to sick leave for elective surgery?
The Fair Work Ombudsman has published clear rules about sick leave entitlements when it comes to elective surgery. It says that an elective surgery can be covered only when it is pre-arranged and if you can’t work due to injury or illness.
The Ombudsman also says that eligibility will depend on the specific circumstances of each individual case. In terms of providing evidence to prove that an employee is injured or sick, employers have the right to request it.
Can cosmetic surgery be covered by sick leave?
Yes, cosmetic surgery is considered elective surgery and therefore can be covered by sick leave if the aforementioned criteria are satisfied.
Fair Work denies worker sick leave for elective surgery
A recent Fair Work Commission case which delt with the question of sick leave and elective surgery is Australian Workers’ Union, The v Cement Australia Pty Limited T/A Cement Australia [2025]. The employee in this case, Colin Vanderwolfe, had worked at Cement Australia’s mine site in Gladstone, Qld for over 40 years. At the time of his dismissal he was employed as a mine operator.
In 2023, he informed the company of his intention to retire in August of the following year. But in December 2023, Mr Vanderwolfe received a letter from Cement Australia highlighting that he had taken 58 days of paid personal leave since the beginning of the year.
The company told him that this was a “particularly excessive” amount of leave. The letter referenced a clause of Cement Australia’s enterprise agreement. This clause allowed the company to review personal leave entitlements where there was excessive usage. The clause entitled this provided the employee had been counselled and warned. Cement Australia warned Mr Vanderwolfe that his entitlement to paid personal leave could be reviewed or potentially discontinued.
Elective surgery leave knocked back
In March 2024, Mr Vanderwolfe notified Cement Australia that he would undergo elective knee surgery in May. He said that he would likely not be able to work for three months after surgery. Mr Vanderwolfe asked for confirmation if he would be able to cover this period with paid personal leave.
Cement Australia, however, told him that it would only approve one day of paid leave. This was the day of the surgery itself. It explained that it was “unreasonable” for the company to fund extended personal leave for an elective procedure so close to his retirement. Cement Australia said that he could take unpaid annual leave instead.
Mr. Vanderwolfe countered this by citing the terms of the company’s enterprise agreement. He said that it could only deny paid personal leave if he had used up three months of personal leave. However, Cement Australia told him that the enterprise agreement did not in fact entitle him to three months of leave. It said that it would not change its decision to deny him paid sick leave.
Worker’s union challenged decision via Fair Work
The Australian Worker’s Union subsequently lodged a dispute resolution claim with the Fair Work Commission on Mr Vanderwolfe’s behalf. The union argued that Cement Australia had misapplied its own enterprise agreement. It said that Mr Vanderwolfe was entitled to be paid for the entire 10-week absence under a clause 7.3 of the 2022 enterprise agreement.
Fair Work noted employer had tightened leave rules
At Mr Vanderwolfe’s dispute resolution hearing, the Fair Work Commission accepted that he had been absent from work for 10 weeks. It had to work out if Cement Australia had properly exercised its discretion under clause 7.3.6 to deny him sick leave for that period. This clause gave the company the option to refuse paid personal leave after an employee has been counselled for excessive use of leave.
The Commission looked at the previous 2020 version of Cement Australia’s enterprise agreement. It said that this agreement was “extraordinarily generous” in terms of personal paid leave entitlements. The Commission noted that the company had “unsurprising[ly]” sought to tighten availability of these entitlements when its enterprise agreement negotiations took place in 2022.
The new clause 7.3.6 introduced in 2022 provided a set of circumstances under which Cement Australia could counsel an employee and decline payment for future absences.
Worker had right to sick leave, but employer had rights too
The Fair Work Commission next considered the scenarios in which Cement Australia was permitted to counsel or discipline an employee about their use of paid leave. This included if they had taken a “high” amount of leave or had a “pattern of absences.” It also included if Cement Australia had doubts about the “genuine” nature of their illness or injury.
The Commission acknowledged that Cement Australia had made “no suggestion” that Mr Vanderwolfe had a “pattern of absences. It also accepted that the company had not questioned the “genuineness” of his leave. The Commission concluded that Mr Vanderwolfe was “quite simply, taking…paid time off work”. This was because he had been unable to work due to his medical conditions.
However, despite this finding the Commission sided with Cement Australia. It noted that the company had counselled Mr Vanderwolfe in writing in December 2023 about his excessive use of paid personal leave. It had then put him “on clear notice” of Cement Australia’s right to decide if he would be entitled to payment for future work absences.
By notifying and counselling Mr Vanderwolfe about the excessive amount of leave he had taken, Cement Australia had fulfilled its obligations under clause 7.3.6. The company was therefore entitled to decide if it would provide payment for any further absences.
Elective surgery and retirement: Relevant or not?
The Fair Work Commission therefore said that it did not need to determine whether Mr Vanderwolfe had a “genuine need” to take personal leave under clause 7.3.2. However, if it needed to make this determination, it said the elective nature of his surgery would be “irrelevant.”
The Commission stated that employees are entitled to undergo elective cosmetic surgery if they choose to. And their entitlement to paid sick leave for elective cosmetic surgery is not different to a situation where “they have a burst appendix”. The Commission said that if an employee has a medical certificate proving they were too sick to work, they are “entitled” to be absent from work.
It was also determined that Mr Vanderwolfe’s upcoming retirement was not in itself a valid reason to withhold personal leave. The Commission said that factor might only become relevant after the expiry of the standard three-month paid leave period referenced in clause 7.3.2(e).
Fair Work ruled worker not entitled to sick leave
The Fair Work Commission ultimately found that Cement Australia had properly applied its enterprise agreement and had issued the appropriate warnings to Mr Vanderwolfe under clause 7.3.6. It was therefore within its rights to deny payment for his extended absence following elective surgery.
However, the FWC made it clear that employers cannot deny paid sick leave solely on the grounds that a procedure is elective. Also, if the decision was made on the basis that the employee is due to retire. These factors were highlighted as irrelevant so long as the employee provides valid medical evidence of incapacity to work. Ultimately, the FWC concluded that Mr Vanderwolfe was not entitled to paid personal leave for the 10 weeks he was absent.
Boss pays for worker’s $21,000 boob job
While the employee in the previous case did not end up getting paid to cover his surgery, the one in this story certainly did. In July 2024, the owner of Perth hair salon Circles of Hair, Sharlene Lee, made headlines for her extreme generosity to her workers.
Ms Lee had been owner of the salon for 30 years and employed over 50 staff in two locations in Perth. She told media that she would “do anything” to help her staff each their personal and professional goals. This included if they wanted a boob job.
Sharlene Lee and her employee – Credit: TikTok
Bank crushes worker’s dream of double D’s, boss saves the day
In April 2024, one of Ms Lee’s employees got word from her bank that it could not advance her a loan in time to fund her upgrade from a size C to double D. She had already scheduled the procedure, and fearing she would have to cancel, went to her boss.
Ms Lee, known amongst her staff as the “bank of Sharls,” did not disappoint. When informed of her employee’s prospect of going without a boob job, Ms Lee said “definitely f*cking not.” The employee said that her boss “put my boobs on her Amex,” loaning her $21,000, which she later repaid after the procedure.
‘You don’t need a f*cking man – I’ll do it’
But this was not a one-off gesture. Ms Lee has a long history of supporting her team in life-changing ways. In 2008, she helped an employee escape a dire situation. The employee had moved to Australia on a partner visa. When her relationship ended, she feared she’d have to leave the country.
Ms Lee told media that her employee was “panicking and didn’t know what to do.” She then told her “You don’t need a f*cking man – I’ll do it’ – sponsoring the employee herself so she could extend her stay in the country. Ms Lee said that employee still works for her and is now a key part of her brand.
Years later, the same employee went to Ms Lee telling her that she had doubts about ever owning a home. So, her boss proposed going halves in a $500,000 property. The employee took her up on the offer, and she and her now-husband have since bought Ms Lee’s half out. The salon owner said that she “didn’t make a cent” from the arrangement and that she “just wanted to help her.”
Ms Lee has also helped her team in other ways; from buying a car, to assisting with mortgage repayments and paying for concert tickets. She’s also splurged on business class trips for her employees to Europe and said that she does not care if she is repaid.
Ms Lee said that her generosity is not only about going the “extra mile” to retain staff. Also, it’s about “giving back” when you are of older age and have the money to do so. The salon owner, who regularly uploads to TikTok, has received much praise for her generosity, being described as “one of life’s true angels.”
Have you had your workplace rights violated?
If you have been denied paid leave or faced unfair dismissal, discrimination or sexual harassment, our team can help. We are Australia’s leading workplace mediators and commentators, with 30 years of experience helping workers.
This article delves into the intricacies of sick leave from an employee’s perspective. In turn shedding light on the challenges, potential benefits, and the decision-making process involved. When an employee has health, personal or medical needs, the emotional impact can be significant. Feelings of betrayal, anger, and confusion often arise, affecting both personal and professional well-being. Additionally, the sudden loss of income and financial stability can create hardships. Further making it necessary to evaluate the potential benefits of pursuing legal action.
Seeking justice for loss of income, your human rights or unfair dismissal typically involves initiating complex proceedings. This can be a stressful and time-consuming process, involving consultations with employment lawyers. Also the gathering evidence, and attending hearings or mediation sessions. It is essential for employees to weigh the potential outcomes against the emotional and financial costs involved.
If you have been treated unfairly or dismissed for any reason A Whole New Approach can help. AWNA are not lawyers. We are Australia’s leading workplace advisors and commentators. In the last two decades, we have assisted over 16,000 employees to make an unfair dismissal claim. Our team can help you understand if you can purse redress through the Fair work. We provide you invaluable guidance throughout the process. All workplace investigations, casual employees’ issues, workplace harassment.
Call us today on 1800 333 666 for a free, confidential discussion about how we can help you seek redress.
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