Employers regularly seek legal advice on their obligation to pay sick leave.
They want to know when they have to pay it, how it is calculated, what evidence is required and what a doctor’s certificate should state.
Legal entitlement to paid personal/carer’s leave
A full time or part time employee has the right to take paid personal leave provided:
- the employee has accrued the paid personal leave entitlement;
- the leave is taken for a permitted reason; and
- the employee complies with the notice and evidence requirements,
in accordance with the Fair Work Act, and any applicable enterprise agreement or modern award.
How does the leave accrue?
A full-time employee accrues 10 days of paid personal/carer’s leave for each year of service with their employer. A part-time employee accrues a pro-rata entitlement (based upon their hours of work compared to the hours of a full-timer), generally, it is calculated as a fraction to determine a part timer’s full-time equivalency. A casual employee is not entitled to paid personal/carer’s leave but can access unpaid leave in certain situations (not dealt with this article).
For a full or part-time employee, the entitlement accrues progressively throughout the year and from year to year but is not paid out on termination of employment.
What is a permitted reason?
An eligible employee is entitled to take this type of leave when the leave is taken for:
personal reasons – that is, when the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or
- care or support reasons – when the employee is required to provide support to a member of the employee’s immediate family, or a member of the employee’s household who requires the care or support because of:
- a personal illness, or personal injury, affecting the member; or
- an unexpected emergency affecting the member.
The Fair Work Act contains a cautionary note in the relevant section to make it clear that the notice and evidence requirements of section 107 must be complied with.
What are the notice and evidence requirements?
The employee must give their employer notice of the taking of the leave:
- as soon as practicable (which may be after the leave has started); and
- must advise the employer of the period, or expected period, of the leave.
After giving the above notice, if requested by the employer, an employee must give evidence to the employer that would satisfy a reasonable person that the leave is taken for a permitted reason.
What evidence would satisfy a reasonable person?
A medical certificate signed by a medical practitioner is generally accepted as satisfactory evidence, provided it states the leave is taken for a permitted reason.
Ideally, the wording of a medical certificate reflects the wording of section 97 of the Fair Work Act. For instance:
“Employee X is unfit for work because he/she is affected by a personal illness”
“Employee X is unfit for work because he/she is affected by a personal injury”
The wording of the Fair Work Act gives doctors the ability to describe why an employee is unfit for work, but still eligible for paid personal/carer’s leave, without invading the employee’s privacy.
It is when the wording of a medical certificate deviates from the terminology in the Fair Work Act that employers will more closely scrutinize it, particularly, when an employer has reason to believe the employee is taking a “sickie”.
Employers have queried, and will continue to query medical certificates that state, words to the affect of, “the employee tells me they are ill”.
Social media is increasingly catching out some employees who call in sick only to post a photo of themselves at the beach, a music event, a sporting event, some other place or out with their friends.
What is the consequence of not complying with the notice and evidence requirements?
If an employee fails to comply with the notice and evidence requirements, the employee is not entitled to the paid leave.
Employees who take paid personal leave, when they are not entitled to, can be subject to disciplinary action up to and including dismissal.
This article focuses on full time and part time employees in the private sector and their employers. It provides general information only.
Prepared by Michael Gibson and Matt Bell.
This publication has been carefully prepared, but it has been written in general terms and should be viewed as broad guidance only. It does not purport to be comprehensive or to render advice. No one should rely on the information contained in this publication without first obtaining professional advice relevant to their own specific situation.