CCIWA’s Senior Employee Relations Adviser Andjelika Cabassi answers some common questions about personal leave.
With a record-high number of people already being hit by the flu this year in WA and hospitals straining under the pressure of increased admissions, it’s only a matter of time before you have a “cougher” in the office.
So what can you do when every cough and splutter leaves you cringing and worried about what illness may be spreading to all your staff?
CCIWA’s Senior Employee Relations Adviser Andjelika Cabassi says there are steps you can take to manage the situation.
“You can send them home, but it is really important that if you do, that you pay them for that time. I It is not personal leave from that perspective because they have been directed to go home,” she says.
“What you can do, however, is ask the employee to provide medical clearance to show that they are in fact fit to come back to the office. If they are not, then that’s when they start to use their personal leave. In certain circumstances, you may need to pay for that appointment. It is recommended you call the Employee Relations Advice Centre to discuss your particular situation.”
Cabassi says it’s the role of the employer to support employees and therefore not unreasonable, if the employee is refusing to leave, to ask how they are going and request a medical certificate.
“It’s basically just having a conversation and saying ‘look, we can see you are not doing well, are you okay to be here? If you need to take the rest of the day off because you are unfit for work , please provide us with a medical certificate so we know when you are okay to be back at work,” she says.
On the flipside, employers may be faced with an employee who calls in sick on a regular basis. Depending on the circumstances, as an employer you may be limited in the recourse you can take as employees have a statutory right to be sick.
“If you are starting to see a particular pattern, such as either side of the weekend or after a public holiday, you should draft a policy that allows you to request medical evidence in those circumstances,” Cabassi says.
“But remember, what you put in your policy may restrict you, so make sure that it allows some flexibility to enable you to adjust it, as well as making sure it is also reasonable in the circumstance.”
Is the employee faking?
If you are concerned that your employee may not be genuinely ill, Cabassi says you should call the medical centre or pharmacy to question the validity of the medical certificate.
“It is possible, and we’ve seen a number of cases that have come out where employees have been dishonest. There was quite a significant unfair dismissal case where an employee said if their employer didn’t approve their annual leave request to go to a football game they would get a medical certificate to say that they weren’t fit,” she says.
“That is basically admitting to fraud because they are not actually unfit for work. Employers should warn employees in advance of that conduct constituting fraud because they have already pre-empted you to question the validity of their medical certificate.
“If you do contact the medical centre or pharmacy, you can request confirmation that the dates on the certificate are correct and that they have attended the medical centre or pharmacy. You can not get information about what was specifically discussed in the session. You are confirming the certificate is genuine.”
Cabassi says an employee cannot refuse to provide a medical certificate because it is a lawful instruction under the Fair Work Act for an employer to request evidence that would satisfy a reasonable person when an employee accesses personal/carer’s leave.
Can you terminate?
If you feel the personal leave has been excessive, don’t be tempted to terminate an employee out of frustration as you and the business may be at risk of hefty penalties for unlawful termination where the employee has complied with a policy.
Cabassi says while there are exceptions where an employee can be terminated, it is best to seek advice relevant to your particular case.
“The only time it may be lawful is if an employee can no longer perform the inherent requirements of the role based on specialist medical advice and they have passed the temporary absence period outlined in the general protections provisions under the Fair Work Act,” she says.
“You can face significant fines of up to $63,000 as a business or if you are the individual knowingly involved in the contravention, there are personal fines of up to $12,600, as well as uncapped damages.”
Must you pay out personal leave on termination?
While rarely the case, there are some awards under the national system that may entitle an employee to be paid as part of historical entitlements.
“It is always important to check your award, but under the National Employment Standards there is no entitlement to pay out personal leave,” Cabassi says.
► Like to know more about personal leave? Contact CCIWA’s Employee Relations Advice Centre on (08) 9365 7660 or email firstname.lastname@example.org.