The Fair Work Ombudsman of Australia provides valuable information for employers and employees relating to medical certificates, sick leave notices and employer payments to employees for sick leave.
Sick Leave Notice
An employee has the obligation to let their employer know that they are going to take sick or carer’s leave. This has to be done as soon as possible, and can be after the leave has started. They should also specify how long they will be off or expect to be off work.
When evidence has to be given
Employers can ask an employee to give evidence to confirm why they have been away from work at any time. This includes even if an employee has only been off sick for one day.
An employee who doesn't give their employer evidence when asked may not be entitled to be paid for their sick or carer’s leave.
A workplace policy or an employment agreement can specify when an employee has to give evidence to their employer and what type of evidence they have to give.
To see this information as set out by the Fairwork Ombudsman.
Example: Workplace policies on sick leave
Anna is a full-time employee at a retail store. When she started, her employer gave her a handbook that said if an employee is sick on a Monday, They need to provide evidence that they were sick. Anna was sick with a cold over the weekend and had to take the Monday off. Anna gave her employer a medical certificate when she came back to work on Tuesday in line with the workplace policy. She was paid for her day off.
Fair Work Act (2009) Section 107 deals with evidence for leave:
(3) An employee who has given his or her employer notice of the taking of leave under this Division must, if required by the employer, give the employer evidence that would satisfy a reasonable person that:
(a) if it is paid personal/carer's leave--the leave is taken for a reason specified in section 97
Section 97 – Taking paid personal/carer’s leave:
An employee may take paid personal/carer's leave if the leave is taken
- because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee
...The types of evidence commonly requested include a medical certificate or statutory declaration. It may not be reasonable on every occasion of personal illness for an employer to require an employee to provide a medical certificate. However, in cases of an absence extending beyond a short period or repeated absences on particular days (e.g., before or after leave).
"Medical certificate" means a certificate signed by a medical practitioner.”
Attending medical appointments and elective surgery
Medical appointments and elective surgeries that are pre-arranged can only be covered by sick leave if an employee is not able to work because of a personal illness or injury. It will depend on each individual circumstance.
An employer can ask for evidence from an employee to confirm that they were unfit for work. This can help decide if an employee should be paid sick leave or be paid a different type of leave or entitlement
To read the specifics of the legislation please click here.
Payment for Sick and Carer’s Leave
Sick and carer’s leave is paid at an employee’s base pay rate for each hour or part of an hour of leave they take.
An employee who takes paid sick or carer’s leave is only paid for the hours they would normally work (not including overtime hours).
A base pay rate doesn't include separate entitlements such as:
- incentive-based payments
- penalty rates
Example: Paid sick and carer’s leave on ordinary hours
Jane works 9am-5pm Monday to Friday every week. For the last 6 months she has been working overtime on Wednesday night until 7pm. Jane became sick with a cold and couldn't come into work on Wednesday. When she received her pay, she noticed her employer paid her her normal hours between 9am-5pm as sick leave and did not pay her 2 hours of overtime. This is correct as her overtime is not included in her base pay rate.
Employees have to give notice to get paid for sick and carer’s leave. An employer can ask for evidence of an employee’s reason for taking sick or carer’s leave.
Cashing out Sick and Carer’s Leave
Cashing out sick and carer's leave means employees get payment instead of taking the time off work.
Most awards don’t allow sick and carer's leave to be cashed out.
Employees covered by a registered agreement can cash out sick leave if the agreement allows it.
Only 3 awards allow employees to cash out sick and carer's leave. These are:
The awards contain rules about when this can happen.
What conditions apply if cashing out is allowed
Sick and carer's leave if allowed by an award or registered agreement, can only be cashed out if all the following conditions are met:
- a separate agreement is made in writing each time leave is cashed out
- the employee has a balance of at least 15 days of untaken paid sick and carer's leave after cashing out
- the employee is paid at least the full amount they would have been paid if they actually took the leave.
An employee can't cash out their built-up sick and carer's leave if these conditions aren't met.
Unpaid carer's leave
All employees, including casual employees are entitled to 2 days unpaid carer’s leave.
Employees get 2 days unpaid carer’s leave each time an immediate family member or household member of the employee needs care and support because of:
- injury or
- an unexpectd emergency.
Full-time and part-time employees can only get unpaid carer’s leave if they don’t have any paid sick / carer’s leave left.
An immediate family or household member is:
- de facto partner
- sibling, or
- child, parent, grandparent, grandchild or sibling of the employee's spouse or de facto partner.
A household member is any person who lives with the employee (Fair Work Act 2009 (Cth) Sections 12 and 97).
Taking unpaid carer’s leave
Unpaid carer’s leave can be taken:
- in one continuous period (eg. 2 working days in a row) or
- in separate periods as agreed between the employee and employer (eg. 4 half days could be taken in a row).
An employer can’t take negative action against an employee for taking unpaid carer’s leave (Fair Work Act 2009 (Cth) Section 102).
To find out more about your Rights at Work and Protections at Work click here.
Long periods of sick leave
An employee can take as much paid sick leave as they have accumulated to get better from an injury or illness.
An employee can’t be fired because they are sick. This includes when an employee is on paid sick leave for a long period of time.
When paid sick leave runs out
When an employee has run out of paid sick leave, they can take unpaid leave if they aren't fit for work because they are sick or injured.
If the employee is on unpaid sick leave, they can’t be fired if:
- they have been away for 3 months or less and
- they provide evidence of their illness or injury.
When an employee is away for longer than 3 months
If an employee has used all their accumulated sick leave and is on unpaid leave for more than 3 months and they are dismissed by their employer, the termination is not automatically unlawful. The 3 month absence can include a combination of paid sick leave and unpaid leave over a 12 month period.
The normal rules for a termination still apply and the employee may dispute the termination by:
- making an unfair dismissal application if the reason for the dismissal is harsh, unjust or unreasonable or
- making a general protections claim if the reason for the dismissal is because of the employee’s disability.
More Leave Information
More Information about Leave and a very good quiz to help you learn more about the legal aspect of Leave as determined by the Fair Work Act can be found here – https://www.fairwork.gov.au/leave
Minimum leave entitlements for employees come from the National Employment Standards (NES). An award, registered agreement or contract of employment can provide for other leave entitlements but they can’t be less than what’s in the NES
You can test your knowledge on leave entitlements with our Workplace Basics quiz, which will also give you feedback and links to helpful resources on leave entitlements.