Managing frequent sick leave lawfully

This is the National Employment Standards entitlement in Fair Work Act s 96. Sick and carer’s leave come from the same balance. It accrues gradually from the first day, based on ordinary hours, and there is no minimum or maximum amount that can be taken at once. An employee can take as much as they have accrued.

Paid sick leave covers a personal illness or injury, which can include stress and pregnancy-related illness. Paid carer’s leave covers caring for or supporting an immediate family or household member who is sick, injured or affected by an unexpected emergency. Awards, agreements and contracts can give more, never less.

These rules are in s 107. A medical certificate or statutory declaration are both examples of acceptable evidence. There is no fixed form; the test is whether the evidence would convince a reasonable person that the leave was genuine. An award or registered agreement can set its own evidence rules, but any request must be reasonable in the circumstances. An employee who doesn’t give the notice or evidence you request may not be entitled to be paid for that day.

• Reasonable: asking for a certificate or statutory declaration under a written policy you apply to everyone.
• Reasonable: asking for evidence that someone was unfit for work when sick leave is used around a pre-arranged appointment or elective surgery.
• Not reasonable, in the Fair Work Ombudsman’s view: attending the employee’s medical appointment (unless they ask you to) or contacting their doctor for more information.

Under the general protections you can’t take adverse action against an employee because they have, used or propose to use a workplace right. Adverse action includes dismissal, refusing an entitlement, changing their job to their disadvantage or treating them differently from others. Disability and family or carer’s responsibilities are also protected attributes under s 351.

The temporary absence protection in s 352 and Fair Work Regulations reg 3.01 works like this, as summarised by the Fair Work Ombudsman:

• The employee is protected from dismissal because of the absence if they provide evidence of the illness or injury and have been away less than 3 consecutive months, or less than 3 months in total over the last 12 months.
• An employee on paid sick leave the whole time can’t be dismissed because of the absence, however long it lasts.
• The protection ends only when the absence is more than 3 months (consecutive or in total over 12 months) and paid sick leave is used up.

Losing the s 352 protection doesn’t make a dismissal safe. The employee may still bring an unfair dismissal, general protections, unlawful termination or anti-discrimination claim, and state or territory workers compensation laws can add protections for work-related injuries.

1. Check the facts. Pull the leave records. Confirm the absences were notified and evidenced as your policy requires, and separate unauthorised absences from genuine paid leave.
2. Set a written policy. State how to notify absences and when evidence is required, and apply it to everyone. Imposing stricter evidence rules on one employee is treating them differently from others, which is one form of adverse action.
3. Have a supportive conversation. Raise the pattern and its effect on the team, ask whether something at work or outside it is contributing, and listen. Don’t ask for diagnoses you don’t need.
4. Consider flexibility and adjustments. Changes to hours, patterns or location of work, or to equipment and processes, may help. An employee with disability who has 12 months’ service can make a formal flexible work request under s 65.
5. Document and follow up. Record what was discussed and agreed and review it after a set period.

Where the issue is unauthorised absence (no notice, no evidence after a reasonable request), that can be managed as conduct. Where the absences are genuine and evidenced, the question becomes whether the employee can safely do the role, with reasonable adjustments. That needs information about their capacity for work, and usually advice before any decision.

Sick and carer’s leave doesn’t accrue during unpaid sick or carer’s leave. Compassionate leave is separate: 2 days each time an immediate family or household member dies or develops a life-threatening illness or injury, after a stillbirth, or after a miscarriage.

If an extended absence continues past the protected period, any decision about ending employment must still be for a valid reason, follow a fair process and not be because of disability or another protected attribute. Disability is defined in the Disability Discrimination Act 1992, and state anti-discrimination laws also apply.