November 2017

How Do You Handle Staff Taking All Of Their Sick Or Carer’s Leave?

As members will know we have been running the Know Your Award training course in the recent months.  At many of the courses members want to know how to handle employees taking all of their sick or carer’s leave entitlement.

Part of the problem is that it is treated as an entitlement – a right to take the leave.  This is not entirely the case – the right to take such leave depends, importantly, on whether the employee has notified the employer of the absence as soon as practicable (including information on the expected duration of the absence) and has provided evidence that a reasonable person would accept.

The requirement to provide evidence that a reasonable person would accept means that the employer can advise what the employer sees as ‘reasonable’ evidence of the illness or injury affecting the employee or a member of the employee’s immediate family or member of the employee’s household.

To manage this entitlement to take sick or carer’s leave, it is a good idea to have a simple policy that the employee must phone in to notify regarding the absence and speak to a nominated person.  This will help to keep people honest!  If you allow texting in or other forms of communication such as emails, it is easy to get away with just taking ‘sickies’.  If they phone in you can assess whether they are actually ill.  You can inquire as to the illness by just being interested in them on a personal level.  For example:  “Sorry to hear that you are ill – what is wrong?”  “Hope the kids do not catch it – have you been to the Doctor – remember to get a medical certificate”.

Evidence that a reasonable person would accept can be advised to be a medical certificate.  You may still accept a Pharmacist certificate in circumstances where the employee may not be able to get into see their Doctor and the employee does not abuse the right. You do not have to enforce this policy for employees that seem to only take time off when they are actually ill.  We get some funny stories from members – on one occasion an employee brought in a Veterinarian certificate as proof of absence.

Questioning medical certificates is difficult and the Fair Work Commission will normally accept a certificate as prima facie evidence of illness or injury.  There is also the risk that employees may take a General Protections claim against you for taking adverse action against the employee.  A recent case highlights this. In this case the employee was dismissed for serious misconduct because the decision maker had a strong reason for not believing the employee was ill, and the decision maker believed that the employee was trying to mislead the company by providing a false certificate.

The Court dismissed the appeal on the basis that the reason for the dismissal was not due to the absence on sick leave but rather due to the strong reason genuinely held by the decision maker, even though the evidence ultimately proved that the employee was actually ill on the days of absence.  This type of case is risky because the onus of proof is on the employer not the employee, and the Court can award potentially unlimited damages.  So, if members get an adverse action claim contact the MTA Employment Relations to get specific advice and assistance.

If you do not believe the employee, or they take all of their sick leave each year, make them ring in and speak to a nominated person and make them get a medical certificate.  With carer’s leave make sure there is evidence of the employee’s immediate family member being ill or injured or an emergency (“immediate family” is defined as spouse or de facto partner, child, grandchild, parent, sibling, spouse or de facto partner (or that of their spouse or de facto)). The same applies for members of the employee’s household. If there is evidence that they are not ill or injured and there is no emergency, then do no pay them.  If you see them at the local coffee shop when they are supposed to be home with diarrhoea, or they are getting their nails done at the local shops, you should seek advice and, after a proper investigation, consider dismissal or a warning.  Contact MTA Employment Relations before you take any action.

Employees have the right to take carer’s leave in the event of an emergency affecting an immediate family member or a member to the employee’s household.  However, once the emergency is dealt with and the family member is under the care of the hospital, arguably the employee should come back to work.  This is an area that has not been considered by the Courts.  Loyal employees will make reasonable arrangements in such circumstances, and employers should push other employees to follow this example.

This area of the NES entitlements is complex and may potentially need a strategic approach.  We have pro-forma policies that members can utilise.  Members should contact MTA NSW Employment Relations on P: 02 9016 9000 or E: [email protected] to obtain specific industrial advice before any action is taken.


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