Sick and carer’s leave (also known as personal leave or personal / carer’s leave) lets an employee take time off to 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 to 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:
An immediate family member is:
This definition includes step-relations (e.g. step-parents and step-children) as well as adaptive relations and a household member is any person who lives with the employee.
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 full-time 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 otherwise).
Full-time and part-time employees accumulate sick and carer’s leave during each year of employment. It starts accumulating on 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 workers are often paid ‘casual loading’ to compensate them for the lack of entitlements they receive. This includes paid holidays and sick or personal leave. Casual loading is extra money given to casual workers over and above the normal hourly rate full-timers or part-timers earn for the same job. Casual loading is often viewed as compensation for uncertainty as a casual worker. Many awards and agreements include casual loading. Modern awards specify a minimum casual loading of 25 percent. But this may vary depending on your circumstances. Whether or not you should be paid an hourly rate depends 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.
Recently, the Victorian government 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 permanent employees for certain entitlements regardless of what their contract states. This is regardless of the payment of any casual loading. In short, this ruling says 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 may be subject to change. In the meantime, this decision could affect employees’ sick leave, personal leave, or annual leave entitlements.
It is imperative to note that every employer has different policies and procedures regarding sick calls. If you are unsure about your employer’s specific rules, there are several helpful tips employees should know when calling in to work or using their sick leave entitlements.
This is a vital step as it ensures your employer has sufficient time to 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 the night before you are due to report to work, it may be wise to message/email your boss that evening. You may want to 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.
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 attend work. This is particularly critical if you have a deadline coming up or you are in charge of completing particular tasks that may be time sensitive. Nevertheless, it is imperative to keep your colleagues in the loop so they do not think you are leaving them stranded.
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.
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.
We are here to help - 7 Days a week! Give us a call.
If an employee is sick, employers cannot do much. However, if an employer suspects an employee is abusing their personal/carer’s leave, it’s imperative that you document their behaviour.
Keep a record of the employee’s absence, including dates, times, and reasons. 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 must be taken at face value. That is, if a doctor says the employee is too ill to work, they’re too sick to work. Although an employer can challenge a medical certificate, rare circumstances exist.
For instance, an employer may be able to challenge a certificate because it appears fraudulent. If an employee fails to provide the requested evidence to support their time off work, they are not entitled to pay for the absence. However, employers should treat them lightly when poking and probing employees for further details regarding their sick leave or illness.
Employers can discuss their concerns with the employee and potentially take disciplinary action. (It’s also necessary to note that the employer must also give the employee a reasonable timeframe to produce evidence).
In short, an employee can be dismissed for calling in sick. An employee is no longer protected from dismissal (even if they provide evidence) if:
However, dismissal involving absence from work, in the form of sick leave or personal leave, can be risky. It is advisable to seek professional advice in such cases. If your employer has dismissed you from employment because of sick leave or personal leave, please call us at 1800 333 666. This is for a free
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. However, every case depends on its unique circumstances. This is governed by the General Protection Provisions.
For instance, an employee has suffered an injury and is therefore taking advantage of 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 lawyer about lodging a Workers’ Compensation claim.
Nevertheless, if that employee has sought medical advice and is told that their injury is temporary, the employer may breach 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. This is within 24 hours after the absence commences or such a long 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
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 imperative 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 with 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. This is a private proceeding conducted by an independent conciliator. This conference is an informal method of resolving a General Protections dispute. An independent conciliator will assist the parties in exploring options for resolution and help them 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.
As discussed above, temporary absence for illness or injury and sick/personal leave entitlements are 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 several months or years and is 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, 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 workers’ compensation law prohibits it within certain timeframes or other limitations. 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 timeframes, 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:
 Fair Work Act 2009 (Cth) s 352; Fair Work Regulations 2009 (Cth) (FW Regulations) Reg 3.01.
In Victoria, and in many other jurisdictions, there is an obligation period. This is 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 has its own obligation period. Thus, it is important to familiarise yourself with your rights regarding Workers’ Compensation in your respective state.
 The 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 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. 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”
The employer argued that the employee’s aggressive behaviour towards his colleagues was unacceptable and continued even after he was warned about it. Thus, the employer dismissed the employee, indicating that this misconduct was a valid reason for dismissal. In addition, s 103 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) is not relevant.
Deputy President Colman held that the employee’s conduct was sufficiently grave to warrant dismissal. This was not a disproportionate response to the conduct in question. Deputy President Colman dismissed the employee’s argument that his dismissal was prohibited under J Boag and Son Brewing Pty Ltd v Allan John Button. 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.
Obviously, where an employer dismisses an employee for incompetence and the employee has a workplace injury, s 103 may be relevant. But it is not relevant in cases where the reason for dismissal has nothing to do with a workplace injury, which is the case here. The employee did not allege that his dismissal was related to his Achilles heel injury or a return to work. There is no evidence to support any such contention.
The key takeaway from this case is that the valid reason for the dismissal was misconduct and the fact that the employee was on workers’ compensation was irrelevant in determining whether his dismissal was harsh, unjust, or unreasonable.
Nevertheless, this may not always be the case. If you feel your employer is dismissing you on the basis that you have engaged in misconduct or poor performance. However, if you really believe this is due to your illness or injury, you may be eligible to bring an unfair dismissal claim. Employees who believe they have been unfairly dismissed can lodge an Unfair Dismissal Application (Form F2) with the Fair Work Commission. Please remember there is a strict 21-day period after your dismissal to lodge an application.
If you wish to discuss your dismissal or potential dismissal matter further, please contact us at 1800 333 666 for a free and confidential discussion.
Dismissing an employee for illness, injury, or sick/personal leave may constitute disability discrimination. 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. This is because of their physical or mental disability/impairedness. Discrimination in this context is not limited to direct and conscious selection based on an employee’s protected attribute. Instead, it 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 imperative to consult your specific state or jurisdiction regarding whether you have a discrimination claim and what ground it falls under.
Unfair Dismissals Australia is an industry leader. We strictly represent employees regarding issues to do with fair work. We are available 7 days a week.