Employers and employees must be fully across and understand their obligations to each other when it comes to sick leave.
Roland Müller, an experienced advisor and nationally accredited workplace mediator with Australian Workplace Strategies, says there are just as many employers as employees who misunderstand their obligations, leading to costly and sometimes embarrassing disputes.
“Investing in good advice early can pay dividends later, by preventing or containing disputes,” Mr Müller says.
Employees who do not meet the notice requirements or the evidence requirements under the Fair Work Act may not qualify for paid personal leave unless a Modern Award or enterprise agreement provides for different entitlements.
“Under the Act, employees are required to notify their employer that they are taking leave, the type of leave and its expected duration. They are also required to provide evidence that the leave is being taken for the reason claimed. If they provide a medical certificate, this needs to be signed by a medical practitioner.
“The Fair Work Act is clear. There is no entitlement under the Act to paid or unpaid personal, carer’s or compassionate leave unless the notice and evidence requirements are met.”
Mr Müller recently represented an employer in an unlawful dismissal case, in which the former employee argued that the employer had taken adverse action by not paying her for a day of personal leave. The employee also argued that when she was ultimately dismissed for unrelated reasons, a reason for her dismissal was the request for paid personal leave.
The employer had been clear that the employee’s failure to meet both the notice and evidence requirements meant her leave was treated as unpaid leave. The judge rejected her argument that it amounted to adverse action on the basis that the employee’s medical certificate did not comply with the Fair Work Act requirements. She had also not informed the employer of the expected duration of her leave.
“It is important for employers and employees to seek capable independent industrial relations advice to ensure that they understand their obligations.
“It is also basic courtesy and common sense for a worker to inform their employer why they need leave and when they expect to return to work,” Mr Müller said.
Through advising employers and employees on the prevention and resolution of employment law disputes, Australian Workplace Strategies has seen many examples of parties failing to understand their obligations and the matter then escalating. This can be avoided by good independent advice and early mediation, which can reduce misunderstandings and resolve disputes early, to prevent potentially costly litigation.