By Cala Ahmed 

Sick leave or personal leave as it’s formally known under the Fair Work Act 2009 (Cth) (FW Act) is a fundamental aspect of employee workplace entitlements. As a business owner or people manager, you must be aware of your employees’ rights to take sick leave, when you can request appropriate evidence, what that evidence should look like, and the instances in which you may be able to take disciplinary action where an employee is falsely taking leave or not complying with your processes.  

While the ‘great Australian sickie’ is now considered a downward-trending cultural norm, it’s important to recognise that staff absenteeism continues to pose a significant cost to employers through both wages and diminished productivity.  

In this article, I deep-dive into how businesses should navigate sick leave entitlements, manage employee absenteeism, and share important information about when and how sick leave should be used. Let’s get into it! 

Entitlements to sick leave  

Personal and carer’s leave entitlements are governed by the FW Act and may be bolstered by the employee’s contract, modern award, or enterprise agreement.  

Generally, sick or carer’s leave may be utilised by employees where they are:  

  • Not fit for work because of personal illness or personal injury (sick leave).  
  • To provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because of: 
  • a personal illness, a personal injury affecting the member; or 
  • an unexpected emergency affecting the member (carer’s leave). 

It should be noted that ‘immediate family’ only includes a spouse, de facto partner, child, parent, grandparent, grandchild, or sibling of the employee (or those same relatives of the employee’s spouse or de facto partner). It doesn’t include, for example, cousins, aunts or uncles, great-grandparents or great-grandchildren. The definition also doesn’t include pets, as much as we may consider our furry, feathered or scaled friends to be our family. 

There’s nothing to prevent employers from allowing an employee to use their personal or carer’s leave in excess of their eligibility, but businesses should be careful about setting precedents for the rest of the workforce. 

Notice and evidence required for sick leave  

Notice should be provided by employees of the period or expected period of sick leave as soon as possible. Employers may request that such notice be given before the start of a shift or work period, but where this isn’t possible, it’s to be expected that the employee will notify the business when they can. 

Employers are entitled to request evidence to confirm that any sick leave is legitimately being taken for the reason specified. A signed medical certificate or a statutory declaration are typically sufficient forms of proof. Employers must not reject certain types of evidence (for example, pharmacy-issued medical certificates) unless it is reasonable to do so AND the employer has previously communicated this policy position to the workforce. Alternative evidence may be required depending on the circumstances surrounding the leave being taken.  

An employer isn’t the employee’s treating medical practitioner and shouldn’t challenge or reject the medical evidence unless there are reasonable suspicions of fraud. Employer concerns regarding the authenticity of medical certificates should be addressed by seeking confirmation from the authorising doctor. If verification by the doctor is provided, no further action should be taken. 

This doesn’t prevent the employer from requesting permission from the employee to speak to their treating practitioner about the nature of the illness or injury and its impact on their employment, but a business should avoid accusing a doctor of falsely diagnosing a medical condition. 

When is disciplinary action appropriate?  

The FW Act protects employees from adverse action such as terminations and performance management plans where that action is taken because:  

  • the employee is absent for a temporary period (three months) due to illness or injury.  
  • the employee has exercised a workplace right (including a right to take sick leave).  
  • of the employee’s physical or mental disability.  

Navigating where disciplinary action should and can be taken must be approached carefully, particularly concerning employees who have taken a period of personal, or carers leave. Disciplinary action may be appropriate where an employee has failed to follow the employer’s communicated procedures for taking leave or is unable to provide evidence as requested. The HR Assured team can provide support and advice where disciplinary action may be justifiable.  

Where does this leave employers? 

Staff absenteeism has a flow-on effect causing a loss of actual wages as well as decreased productivity in the workplace. There can be impacts on employee morale where a worker is viewed as not pulling their weight or exploiting their leave entitlements, while high absenteeism can sometimes be a symptom of a greater cultural issue such as poor leadership, workplace bullying, or lack of employee engagement.  

While it’s important to allow for instances where staff may genuinely need to access sick and carer’s leave, continuously high rates of staff absenteeism may be indicative of an extensive workplace issue that needs to be addressed.  

For comprehensive guidance surrounding personal or carer’s leave, please contact the HR Assured team at our 24/7 Telephone Advisory Service. 

Not an HR Assured client and have questions about this article? Contact the team at HR Assured for a confidential, no-obligation phone call. 

Cala Ahmed is a Workplace Relations Advisor and assists a variety of clients via the Telephone Advisory Service. She is currently studying a Bachelor of Business/ Law.