Published 15 April 2019
Chucking a ‘sickie’ is considered by some to be a great Australian past time. However, sickies can be an absolute nightmare for employers, especially small business owners who struggle to replace staff at short notice. There is a well-documented spike in the use of sick leave around public holidays and with Easter Monday and Anzac Day falling in the same week this year, I’m expecting there to be a nationwide outbreak of migraines, vomiting or the classic diarrhoea (no boss wants to ask too many questions about that one) during that week.
It is estimated that sickies this year over the Easter period will cost the economy around $90 million as businesses face disruption and loss of productivity, delivery and customer service. The effects of sickies are also not just limited to the business, with other employees often required to unfairly pick up the slack of their ‘sick’ colleagues. In this context, arguably ‘chucking a sickie’ is nothing short of theft from the employer.
Employers are understandably keen to limit the sickie thieves over the upcoming Easter period and after a quick refresher regarding the law in this area, we have provided some tips employers can take to protect their interests.
Personal Leave Requirements Under the Fair Work Act 2009 (Cth)
Under section 97 of the Fair Work Act 2009 (Cth), personal leave can only be taken by an employee if they are not fit for work because of a personal illness, or personal injury, affecting the employee, or if they are required to care for another person in their immediate family or household who is ill or injured. (Note: A post-Easter chocolate hangover is not likely to satisfy this requirement).
Employees may also be required to provide evidence supporting their use of sick leave in accordance with section 107 of the Fair Work Act 2009 (Cth) contains the notice and evidence requirements relating to sick leave. If required by an employer, the employee must provide evidence that would satisfy a ‘reasonable’ person. What evidence is required will depend on the workplace, and if there is a sick leave policy in place, but it is quite common for employers to only require medical certificates for absences of two days or more.
Tips for Employers
Tip 1: Remind staff of their obligations and any applicable sick leave policy in place
Simply reminding staff of what is the expectations in the workplace regarding the use of sick leave may have the effect of reducing the number of sickies over this period. This is especially the case if it is done in a friendly, non-aggressive way.
Tip 2: Require a medical certificate or statutory declaration for any sick leave during the Easter period
Following on from Tip 1, in the lead up to the Easter break, it should be communicated to staff that during this period, any use of sick leave will need to be accompanied by a medical certificate or statutory declaration, even if the sickness is for one day. Whilst this may be a departure from the usual practice in the workplace, given the well documented spike in the use of sick leave around public holidays, in our view this requirement is a ‘reasonable’ one.
However, employers whose employees are covered by an enterprise agreement would be advised to review this document. Some enterprise agreements may only prevent employers from requiring a medical certificate for one day absences.
Tip 3: Require employees to call their manager
Employers should require their employees to call their manager, rather than a text or email, if they are going to take sick leave during the Easter period. Employees might think twice about chucking a sickie if they know they have to call their manager to tell them.
Tip 4: Be cautious prior to taking any disciplinary action
A clear misuse of sick leave, supported by evidence, may give the employer grounds to discipline an employee. For instance, the Fair Work Commission has held on a number of occasions that an employer can have a valid reason for dismissal where an employee has been found to be chucking a sickie. This can even be the case in situations where a medical certificate has been provided if there is other evidence to suggest the employee is not legitimately sick (eg an employee’s social media activity).
However, in the event that employers are suspicious of an employee’s use of sick leave, they should proceed with caution. For instance, some employees will actually be legitimately sick over the upcoming Easter period. If a legitimately sick employee is disciplined or dismissed by their employer for taking sick leave, there can be huge ramifications for the employer as this is unlawful under the general protections provisions in the Fair Work Act 2009 (Cth). Where there are any suspicions, we recommend obtaining legal advice before taking any action.
This content is general in nature and provides a summary of the issues covered. It is not intended to be, nor should it be relied upon, as legal or professional advice for specific employment situations.
Olexo Workplace Law recommends that specialist legal advice should be sought about specific legal issues.
