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LABOUR LAW

Sick staff vs employer’s rights

What do you do when one of your employees keeps getting sick, over & over again? Here are some basic tips about your rights and obligations.

Sick At Work

It’s dreaded flu season! So, you got your flu shot and encouraged all your staff to get flu shots. You disinfected the entire office with Dettol and you even spray every person who comes into the office with a delightful shower of Glen 20. In fact, your business now looks like an anti-contamination chamber from the movie Outbreak. For all your efforts to keep people healthy and working, one person gets gastro and bam! Pretty soon the domino effect starts, and everyone is sick.

So, what do you do when one of your employees keeps getting sick, over and over and over again? No doubt it is impacting business productivity and your bottom line.  Whilst every business is different, and each has unique awards to deal with certain situations, here are some basic tips to guide you about your rights and obligations:

The standard rule of thumb is that each employee is entitled to 2 weeks of personal leave/carers leave each year. Let’s just call it sick leave.  If a person is employed on a casual basis, they are not entitled to any sick leave payments

Sick leave can be used for the employee themselves due to illness or injury, or it can be used if they have a direct dependent that they need to care for. This is usually children, a partner, or even a parent.  Friends are not included, nor are aunts and uncles etc

If an employee is sick, then their sick leave is deducted when they are paid. If the employee does not have any sick leave available, then the employer can process this as unpaid leave.  If the employer and employee agree, the additional leave can be paid from the employee’s annual leave balance.

If the employee is lying about being sick, then the employer does not have to pay sick leave, BUT the employer must have evidence of this before taking such a step.  (No doubt a written warning would also need to be given to the employee).

An employer cannot force an employee to obtain a medical certificate. The rule is that an employee can be asked to produce a medical certificate or sufficient evidence of the injury or illness. Sufficient evidence can be a signed statutory declaration from the employee outlining that they were sick and unable to attend work.

The employment contract and related policies and procedures are extremely important. Make sure the contract addresses when a medical certificate or sufficient evidence is required to be provided.  A standard rule of thumb is to require a medical certificate when:

  • The employee is away on either a Monday or Friday or on a day immediately before or after a public holiday or annual leave day;
  • The employee has 2 or more sick days consecutively;
  • There is a consistent pattern of taking sick leave (eg. Once the sick leave balance accrues enough hours for a ‘sick day’);
  • The excuse is always the same (eg. “I have food poisoning” for the 3 time in a row);
  • Otherwise, as the employer requests.

Can someone be fired because they are sick?  Yes and No.  An employer can fire an employee, if and only if:

  • The employee is sick because of a non-work-related illness or injury and they have been absent for a period of 3 continuous months or more;
  • The employee has been sick from a work-related illness or injury and they have been absent from work for a continuous period of 12 months or more.

If the employee is repeatedly sick, the employer can ask the employee to attend upon a medical practitioner selected by the employer to have them medically assessed for their fitness to perform the job.  The employee cannot refuse this direction.  If the medical assessment states that they are fit to work, then the employer can issue a written direction for the person to return to work.  If the report says they are not fit to continue to work, then the steps that need to be taken will depend on the length of time they will be unable to perform their usual work.  Anything over the 3-month or 12-month period could result in termination but if less, then the employer could risk discriminating against the employee on the basis of health.

Employers must be careful not to treat an employee differently because they have been off sick. We know it can be frustrating as a business owner, but discrimination claims pose a very real risk to the employer. If the employee is treated differently solely because of their illness, then the employee can bring an “adverse action” claim against the employer. This is the case even if an employee is still on probation. The key is that the employer must act in a manner that is “REASONABLE AND PROPORTIONATE” at all times when dealing with employees being sick.

Another consideration to be mindful of is being accused of discrimination or workplace bullying due to an employees illness. If employers are not sure whether they are doing the right thing, speak to a lawyer first. The difference can be a clean termination v thousands of dollars in legal fees and fines from Fair Work.  Be smart. Make good choices.

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