Employees thinking they can get away with “a sickie” and receive sick pay without submitting the necessary documentation to prove their absence may find themselves docked a day’s pay.
Employees need to understand they must adhere to the basic requirements when taking paid personal leave due to illness or injury or they may be treated as taking unpaid leave, warns leading national boutique law firm, Parke Lawyers.
Employees who do not meet the notice requirements or the evidence requirements under the Fair Work Act 2009 may not qualify for paid personal leave unless a Modern Award or enterprise agreement provides for different entitlements.
Parke Lawyers special counsel, Roland Müller, an experienced advocate and accredited specialist in commercial litigation, says: “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.”
While some flexibility may be good for morale and workplace relations, being able to apply the strict requirements under the Act can be useful where employees take an entitled or cavalier approach to this limited and conditional right to be absent from work.
The requirements are based on those first introduced under the 2005 “Work Choices” regime, but many employers and employees still seem unware of them.
Mr Müller recently represented an employer in an unlawful dismissal (breach of general protections) case, in which the former employee argued that the employer had taken adverse action by not paying her for a day of personal leave. She 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, which in this instance, happened to be another Melbourne-based law firm, 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, while commenting that it seemed somewhat petty not to pay the employee for failing to meet technical requirements, rejected her argument that it amounted to adverse action. The court confirmed the employer’s right to require the employee to comply strictly with the law when seeking to assert her right to paid personal leave.
Mr Müller said: “The employee’s sense of entitlement was quite extraordinary. Neither she nor her employment lawyers seemed to understand the need to comply with the Fair Work Act to qualify for paid personal leave, even after it had been clearly spelled out in correspondence and written submissions filed before the hearing.”
The example highlights the need for employers and employees to seek capable independent legal and 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.
It helps to minimise the impact of the absence and allows the employer to get on with business, while ensuring the employee can then access their leave entitlement by providing a valid medical certificate or other documentation.
Through representing employers and employees in employment law disputes, as well as advising on employment law compliance, Parke Lawyers has seen many cases where one party fails to understand their obligations and the matter then escalates.
Mr Müller, who is also a highly experienced workplace mediator, notes that 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.”