By Bethany Silverman
Personal leave, or ‘sick leave’ can be tricky for employers to navigate, as it covers a variety of situations.
Under the Fair Work Act 2009 (Cth) (Act), employees (other than casuals) may take paid personal leave where they’re not fit for work because of a personal illness or injury affecting them. However, an employee can also take carer’s leave in circumstances where they need to provide care or support to a member of their immediate family or a member of their household who requires care or support because of:
- a personal illness or injury affecting the member; or
- an unexpected emergency affecting the member.
Although the Act clearly defines when the leave can be taken, there are still grey areas which can cause some confusion! Our top tricky questions are outlined in this article.
Question 1: Can sick leave be used for a pre-booked surgery?
The Fair Work Act provides that an employee can take personal / carer’s leave when they are either unfit for work or required to care for a member of their immediate family or household.
This includes circumstances where they’re undergoing a pre-booked procedure if they’re unfit for work. However, this does not extend to appointments or consultations that occurs prior to the procedure or surgery. For these appointments, the employee would need to use their annual leave.
For example, if an employee is having elective surgery, and needs to attend a consultation the day before the surgery, that appointment would not fit the definition of personal leave under the Act. However, their recovery period after the surgery would.
Remember, you can request medical evidence stating that the employee was or will be unfit for work each time a worker requests to take sick leave.
Question 2: Can carer’s leave be used to care for a sick partner?
Sick leave can be used to provide care or support to a member of the employee’s immediate family or household. The definition of ‘immediate family’ is broad. This generally includes a spouse, de facto partner, child, parent, grandparent, grandchild, or sibling of an employee; as well as a child, grandparent, grandchild or sibling of the employee’s spouse or de facto partner.
Although ‘immediate family’ is broadly defined, a strict reading of the definition means it does not extend to a partner, unless they’re in a de facto relationship.
Question 3: Can I question or dismiss a medical certificate?
Answer: It depends.
Usually, an employer is not able to question or dismiss a valid medical certificate that has been provided by a qualified medical practitioner – after all, the doctor, and not the employer is the expert on illness or injury.
You may, however, question a medical certificate where there is evidence that the employee was not sick or injured, such as when the certificate appears to have been fraudulently altered or varied.
Have a question about personal leave, carer’s leave or another leave entitlement?
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Bethany Silverman is a qualified Senior Workplace Relations Consultant at FCB Group and HR Assured. She regularly provides advice to a wide range of businesses in respect of compliance with workplace laws and managing complex matters including disciplinary and performance management processes and terminations