Personal or Sick Leave?

Personal or Sick Leave?

14-Dec-2012
MANY employees believe paid sick leave is an accrued right similar to annual leave, eligible to be taken at will without notice or evidence,  at any stage during the course of their employment. However sick leave, is now known under the Fair Work Act 2009 National Employment Standards as "Personal  Leave"and is broader in application.
 
Personal or sick leave?


The National Employment Standards provide that an employee may take paid personal/carer's leave if the leave is taken:
(a)because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or
(b) 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:
(i) a personal illness, or personal injury, affecting the member; or
(ii) an unexpected emergency affecting the member.
 


However, this new form of paid leave of absence is not crystal clear under the National Employment Standards and often misunderstood by employers. This article seeks to touch on some of these issues. 


Notice and evidence


 The provision indicates that an employee is required to provide notice to an employer 'as soon as reasonably practicable', and if, or when, requested provide evidence that would 'satisfy a reasonable person'.  
 


A medical certificate is regarded as irrefutable proof of an employee's personal illness or injury. However, satisfactory evidence may vary from a statutory declaration for a single day's absence, to evidence from a suitably qualified registered professional relevant to the employee's illness or injury.
 


Although the term medical practitioner is defined in s.12 of the Fair Work Act 2009 to mean a person registered, or licensed as a medical practitioner under a law of a state or territory that provides for registration or licensing of medical practitioners, it is not used in the context of the evidence requirements under the Personal Leave provisions.
 


Whether an employer accepts a personal/carer's leave certificate from a person other than a medical practitioner will depend on whether the employer considers the certificate to be reasonable (on objective grounds) in the circumstances.
 


A factor which may be relevant as to the reasonable provision of a certificate could be whether the provider of the certificate belongs to a professional group which requires official registration, as this would be more likely to be acceptable.
 


A recent case in Fair Work Australia Ropafadzo Tokoda v Westpac Banking Corporation [2012] FWA 1262 (14 February 2012) Commissioner Deegan found the employee tendered a falsified medical certificate to cover for an absence.
 


The employee delivered to the bank a purported medical certificate indicating that she'd be unfit for work for the week. As the document didn't have the doctor's provider number on it, her manager contacted the surgery and was told it wasn't a certificate provided by the doctor, who said he hadn't seen the employee since 2009.
 


The employee initially denied she had falsified the certificate but then agreed she had because she had been unable to afford to visit a doctor.


 Commissioner Deegan found: "I did not find the [employee's] evidence persuasive in relation to her reasons for falsifying the medical certificate. Her evidence was contradictory and her story changed whenever she was shown that her version was not supported by the evidence."
 


Each case stands alone and it is important to gather appropriate evidence before proceeding with termination of employment.

If you would like to view the original article at Hospitality Magazine please click here.