How businesses should brace for Labour Day sickies: Employment Law Update

Around public holidays, it is common for businesses to report high levels of personal leave. Many workers, who would otherwise normally use personal leave honestly, are tempted to put their normal ethical standards regarding personal leave to one side to enjoy a four-day weekend. With the Labour Day public holiday approaching, we have provided our guide for employers on monitoring sickies.

Monitoring Sick Days

Employers are entitled to monitor and regulate an employee’s use of personal leave. Section 97 of the Fair Work Act 2009 (Cth) provides that for an employee to be entitled to personal leave, they must:

  • Be unfit for work because they are sick or injured, or be required to provide care to an immediate family or household member who is sick or injured or affected by an unexpected emergency;
  • Notify their employer that they will be taking leave “as soon as practicable”; and
  • Where the employer asks for evidence, provide evidence that “would satisfy a reasonable person”.

What can an employer require?

According to section 107 of the Fair Work Act, an employee must, if required by the employer, give the employer evidence that would satisfy a “reasonable person” that the leave has been taken for valid reasons. Types of evidence commonly requested include a medical certificate or statutory declaration, although the Act does not specifically limit evidence to these two forms.

It is important to note that it may not be considered “reasonable” on every occasion of personal illness for an employer to require the employee to provide a medical certificate. However, in any cases of an absence extending beyond a short period or repeated absences on particular days (such as before or after a public holiday), it may be reasonable for an employer to request a medical certificate in support of the employee’s request for leave.

Challenging the evidence

Production of a medical certificate issued by a registered GP is generally regarded as irrefutable proof the employee was legitimately absent from work due to the stated illness. To successfully challenge the medical certificate’s accuracy, the employer would be required to obtain a second medical opinion contradicting the original medical opinion, or confront the employee with evidence of activities that contradict the medical certificate or statutory declaration. See Anderson v Crown Melbourne Ltd [2008] FMCA 152 for an example where an employer successfully challenged the accuracy of a medical certificate.

Notice of Requirements

It would be advisable for employers concerned about post-Labour Day ‘sickies’ to put the employees on notice of their requirements. A friendly email, intranet announcement, or even text message warning would suffice. The communication to employees should specifically state that:

  • Medical certificates or statutory declarations will be required for any absences on a Friday even if the sickness lasts for just for one day; and
  • It will be required (if it is not already) for any absent employee to phone and speak to their manager if they are sick and are not attending work. A phone call, as opposed to a text message or email can lower the chances of an employee chucking a sickie when they know they are required to have a conversation with their manager.

If done in a friendly, unaggressive way, simply putting the employees on notice of the employer’s suspicions may have the effect of reducing the number of sick days taken. Especially amongst employees who are more inclined to have an ethical approach to personal leave.

Tips for Employers:

  1. Have clear policies around when employees must provide evidence of the reasons for their absences and what evidence they must provide.
  2. Be cautions – There is a temptation to rush out and confront every employee who has been suspected of ‘chucking a sickie’. It is vital that you have sufficient evidence to establish that an employee has misused personal leave prior to taking any action, otherwise you may be in violation of the Fair Work Act
  3. If you do have sufficient evidence, allegations should be put to the employee and they should be given adequate time to respond.For more information, we recommend speaking to an experienced solicitor for advice as to whether a proposed action is lawful and the proper way of going about that course.

Want to know more about employment law? Please don’t hesitate to contact our experienced Newcastle commercial lawyers at Butlers Business and Law on (02) 4929 7002 or fill out an enquiry form on our website.

Image: ‘Relax’ by Hamza Butt available at Flickr under a Creative Commons Attribution 2.0.