Absenteeism rates are highest during winter, exceeding 8% according to AiG. In fact, data analysis shows that August takes the prize for the month with the most leave for illness and injury. This trend is primarily attributed to an increase in seasonal illnesses, such as colds and flu, which are more prevalent during colder months and often require longer recovery time.

Under Fair Work, full-time employees are entitled to 10 sick days per year for a personal illness or injury in Australia, with unused sick and carer’s leave carried over to the next year. Leave is pro-rata for part-time employees. Paid carer's leave enables employees to care for or support a member of their immediate family or household who are sick, injured, or have an unexpected emergency.

It seems straightforward right? Unfortunately, illness and leave can become a subject of contention, and when mismanaged can result in Fair Work complaints, particularly if an employee believes their employer's actions related to personal leave violate the National Employment Standards (NES) or other relevant workplace laws. Disputes may arise from issues such as unfair dismissal due to illness, unreasonable requests for medical certificates, or the accumulation or accrual of sick leave. Mismanagement of personal leave can lead to employee dissatisfaction that impacts on productivity and morale.

We look at the common pitfalls and recommendations for how they might be managed better.

1.   Misinterpretation and reinforcement of the leave policy

A leave policy should clearly outline requirements and expectations on all parties. This may seem obvious, but there are a few common mistakes made when developing leave policies:



1. Vague guidelines with wording like ‘at the discretion of the manager’
2. Placing information about medical certificate requirements in a different section of the policy to personal leave entitlements
3. Not detailing requirements for claiming sick leave when on annual leave
4. Not accepting online medical certificates from legitimate medical providers

While these may not seem like mistakes, they may create ambiguity which can lead to issues. This is further complicated when managers all ‘use their discretion’ and don’t reinforce expectations regarding medical certificates. When the policy isn’t enforced consistently, it can result in claims of adverse action and discrimination. 

Many Australians, including some in leadership roles, don’t realise employees can technically take sick leave while on annual leave if they provide a certificate. Being clear in the policy about what is required to claim sick leave in this scenario can assist leaders to manage the process. For example, requiring a medical certificate for all sick days and notifying the supervisor of the illness while on annual leave, may be a requirement.

Many older policies still have a requirement that online medical certificate won’t be accepted. However, the health system in Australia has changed significantly this decade with online appointments increasing substantially, which means this may be considered unreasonable by Fair Work. An online certificate is still considered reasonable evidence if provided by a registered health practitioner. Policies can dictate that these are acceptable for a single day, but for two or more days you need to physically visit the doctor. Please note that even this can be challenged, as there is no clear case law. According to the Act, an employee is required when requested to provided evidence that would satisfies a reasonable person. As such, your policy should clearly outline specific requirements.

2.   Respecting the right to disconnect

The very nature of personal leave means it is often taken without time for a handover. However, the right to disconnect is still relevant when an employee is on sick leave.

Employers should not expect an employee on sick leave to be constantly monitoring work-related communications. In a recent case, a tribunal member criticised an employer for excessive contact with an employee on sick leave, highlighting the importance of the right to disconnect. The case involved an employer making multiple calls and emails to an employee on sick leave, which was deemed unreasonable and contributed to the employee's inability to work. 

An employer contacting an employee on sick leave to check on their condition might be reasonable, but excessive or harassing contact is not. If you do need the answer to a question or require a password for example, it is recommended the language you use ensures this is a request only, providing an out if they are not well to perform your request, and that your tone is apologetic. The nature of the contact and the employee's role are important factors in determining whether a refusal to respond is reasonable. 

Establishing systems for file sharing, regular updates and access to systems where relevant, will help leaders to respect an employee’s right to disconnect on personal leave. It is worth noting that an employer does have the right to request a medical certificate while an employee is on personal leave.

3. Handling suspected employee misconduct

If an employer suspects an employee is claiming personal leave provisions under false pretences, this can be complex to manage. When choosing how to respond, it is worth considering the employee’s overall performance and general reliability.

Your options are as follows:

• Gather evidence. Do you have sufficient evidence to prove misconduct?
• Verify the medical certificate’s authenticity. Contact the issuing clinic and ask for confirmation that the certificate was issued to the employee on the specified date and that the doctor's details are accurate. 
• Ask for a statutory declaration. This is a legally binding document that can be used in lieu of a medical certificate. If you are not satisfied with the medical certificate or have other concerns, you can request a statutory declaration from the employee. 
• Request an independent medical examination (IME). In cases of ongoing issues or when concerns persist, you may consider requesting an IME to assess the employee's fitness for work. This can provide clarity on the employee's ability to perform their duties, any necessary adjustments, and a potential return-to-work plan. 

An IME can potentially break down trust with the employee in the working relationship, so it’s important to understand what you wish to achieve with this action, or it may start a different conversation about the suitability of the role and how it could be adjusted.

If you have evidence that an employee has misused personal leave, disciplinary action may be taken, which can include termination of employment in serious cases. However, you will need to make sure you have a fair and reasonable basis for any action and ensure proper procedures are followed, ensuring you have a documented process to minimise risk. 

4.   Managing employees with long-term illness (non-Workcover)

Managing leave relating to long-term illness is a more complex situation that needs to be treated on a case-by-case basis. It can be difficult to balance an employee’s welfare (and potentially their financial requirements), with their treatment plan and the needs of the business. Often employers are empathetic at the beginning but get frustrated over time, which can lead to negative outcomes.

In Australia, an employer generally needs to hold an employee's role open for a temporary absence due to illness or injury for a period of three months, either consecutively or cumulatively within a 12-month period. After this period, if the employee is still unable to return to work, the employer may consider termination, but only after exploring reasonable adjustments and following a fair process. Please note this will not include an employee on a Workcover claim, as the protections offered by that legislation may differ from the Fair Work Act. 

Below are a few tips for managing long-term illness:

• Lead with compassion. It will be a difficult for the employee, and making this a core philosophy of every interaction and decision will build trust.
• Open communication and support. Initiate conversations, listen and acknowledge the challenges they face without making judgements or assumptions, focus on solutions, and maintain confidentiality.
• Flexible work arrangements and team collaboration. Explore options, adjust workload and document information so other employees can pick up work if the employee is too unwell to complete it. If possible, multi-skill the team so workloads can be redistributed when required.
• Request options from treating practitioners. This may provide further guidance as to the most suitable responsibilities based on the illness. Again, requesting options from treating practitioners may be separate from a Workcover claim, which is guided by different legislation depending on the state.
• Set clear expectations and boundaries. If expectations and boundaries are set and agreed upon, then this also provides a trigger for reassessment if the situation stops working for one or both parties.

These situations can be difficult for everyone involved, and managers should have access to training and professional advice.

As detailed, there are some common pitfalls with personal leave, that can become more complex in specific scenarios. Our Workplace Relations team is available to provide advice to employers. Contact Alan Doyle for a confidential enquiry today on 03 9864 6000.