By Nicholas Parkinson, Lawyer
A recent study [1] of 97 public and private sector employers in Australia found that 40% of all personal leave was taken on Mondays, which is double any other day. 45% of employers surveyed believed that employees were absent on personal leave because they were “chucking a sickie”.
Employers are entitled to monitor and regulate employees’ use of personal leave.
To be entitled to paid personal leave, an employee must:
- Be unfit for work because they are sick or injured, or be required to provide care to an immediate family or household member who is sick or injured or affected by an unexpected emergency;
- notify their employer that they will be taking leave “as soon as practicable”; and
- where the employer asks for evidence, provide evidence that “would satisfy a reasonable person”.
Specific paid personal leave entitlements or procedures should be observed including in any applicable Modern Award.
Employers should have clear policies around when employees must provide evidence of the reasons for their absences and what evidence they must provide.
You should accept a medical certificate from a qualified medical practitioner unless there are circumstances that reasonably lead you to suspect that an employee was not entitled to take personal leave. If so, you can investigate this as a disciplinary matter by asking the employee to provide a medical report, checking that the medical certificate is authentic, and putting specific allegations to the employee, based on objective evidence that their leave claims are dubious.
Care is needed, because disciplining or dismissing an employee for taking personal leave may give rise to an unfair dismissal claim, or a general protections or discrimination claim on the basis that you have taken adverse action against them because they exercised workplace rights to leave.
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