Sick leave is a difficult area. If you feel an employee is abusing their sick leave or taking too much sick leave don’t be hasty with dealing with them. There are a number of potential legal risks when disciplining this sort of behaviour so it’s important to know your rights, your employees rights and what actions you can take.

 

Employer Rights & Obligations

The rules for sick leave that your employees are under will be governed by either an enterprise agreement that covers the employee or the National Employment Standard (NES) under the Fair Work Act. Most modern awards refer to the NES.

Your policy and employee contracts cannot be stricter than the provisions in the NES. If your policy is stricter than the NES provisions, even if your employee doesn’t follow these rules, you cannot discipline them unless their actions contravene the NES provisions.

An employee only has the right to sick leave when they:

•   – Give the employer notice of sick leave as soon as practicable
•   – Tell the employer the expected period of leave
•   – Provide the employer of evidence of unfitness for work (that would satisfy a reasonable person) if requested by the employer.

 

When Can You Discipline or Dismiss an Employee?

Frequency of sick leave

• If you’re concerned about the frequency of their sick leave bring this up with the employee. Offer to stagger the employees work hours or provide longer breaks to help minimise your workplace contributing to their illness. Insist on medical information. If they refuse to cooperate you have grounds to discipline or dismiss them.

Employee is not unfit for work

• If you suspect the employee is not actually unfit for work you can request medical information from them and discipline them if they refuse to give information or where provided information shows the employee was not unfit for work. In either case they do not have the right to sick leave. In order to dismiss an employee in this situation you will need solid evidence that the employee is not unfit for work. This can have serious consequences for the employer if sufficient evidence is not available.

 The Employee does not provide evidence or notice

• If an employee hasn’t complied with notice or evidentiary requirements you can warn them that future conduct can result in an unpaid absence or dismissal. You will need to give the employee a chance to explain why they have not met the requirements and give their response due consideration. If the employee continues the conduct you can dismiss them on the grounds of unauthorised absence from work and failing to meet requirements for sick leave without a proper excuse.

 The employee has exhausted their sick leave

• If an employee has exhausted their paid sick leave entitlement and has taken more than 3 months sick leave in the last 12 months they can be dismissed because they have exhausted that entitlement.

 

Any method for dismissing an employee on the basis of sick leave can still leave you open to claims such as unfair dismissal, unlawful discrimination and general protections. Make sure you document carefully any steps you take with an employee before dismissing an employee so that you have evidence to back your decision. Before taking action it is prudent to seek advice on your particular circumstances.

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The information in this document reflects our understanding of existing legislation, proposed legislation, rulings etc as at the date of issue. In some cases the information has been provided to us by third parties. While it is believed the information is accurate and reliable, this is not guaranteed in any way. Any advice in this publication is of a general nature only and has not been tailored to your personal circumstances. Please seek personal advice prior to acting on this information.