Sickies and Public holidays - What is an Employer to do?

2nd June 2014

Next Monday the 9th June 2014 the Queens Birthday is celebrated with a public holiday in every State and territory of Australia except Western Australia. Full-time and many part-time employees are entitled to the holiday from work without deduction of pay and will enjoy a long weekend of leisure, a great Australian tradition. However, another tradition is emerging where employees take time off work on the days adjoining public holidays and the closest weekend to obtain an ‘Extra long weekend’.

This is fine for employers as long as the additional leave has been agreed in advance, but what do you do when the employee claims they are ill and unable to attend work on the day adjoining the long weekend? Is it genuine or is it the traditional Australian ‘sickie’?

The entitlement to personal leave for illness is regulated by the National Employment Standards (NES). Although modern awards and enterprise agreements may include terms prescribing the form of evidence that employees must provide, it is the NES that primarily prescribes our rights and obligations.

In summary, employees are not entitled to personal leave unless they:

(1) notify their employer as soon as practicable that they will not be at work and the expected period of the absence; and

(2) must, if required by their employer, provide evidence that would satisfy a reasonable person that the absence is due to personal illness or injury.

If you wish to discourage employees from the temptation of taking impromptu extra long weekends then ensure that individual employment contracts and human resource management policies require employees to produce medical certificates for any absence adjoining public holidays and long weekends. If you suspect that an employee is not genuinely ill and is simply taking a ‘sickie’ then your options are limited to challenging the medical certificate provided to you or denying payment due to insufficient notice. These options are very difficult to justify if the employee disputes the matter unless you put a couple of simple measures in place:

Notifying a person in authority

Notifying the employer of an absence due to illness should be more than just a message on the answering machine at reception. Inform employees that they must speak to their supervisor or another person in authority nominated by you. This ensures that the notice is provided to the person in the business that needs to know and provides an opportunity to speak directly to the employee about their health. You must respect the privacy of the employee but there is nothing offensive in enquiring as to the condition of their health.

Challenging medical certificates

Most medical certificates simply state that the employee is unfit for work for a particular period. Unless you are prepared to send employees to a medical practitioner of your choice and at your expense then it is difficult to challenge the veracity of a medical certificate. If the employee does not disclose the nature of their illness you could remind them that they you have a duty to ensure the health safety and welfare of all employees at work and invite them to confidentially disclose the information. Employees that have not been genuinely ill may be reluctant to take another sickie if they know that they will be questioned about it on the next occasion. Of course, if you reasonably suspect a person is unwell, you are able to challenge an employee’s fitness to remain or return to work.

Further advice

If you would like more specific advice in relation to your business please contact Paul Maguire on 03 9097 1771 or email advice@maguire.com.au