HC talks to one lawyer about situations when an employee can access paid personal leave
If it’s known that an absence is due to injury or illness, then an employee has a right to access their paid personal leave precisely due to those circumstances, according to Ross Jackson, Partner at Maddocks.
“So obviously if this is subject to the requirements of supplying evidence then that would satisfy a reasonable employer,” he told HC.
“The first thing to recognise is that you must always act in accordance with the evidence, rather than with assumptions.”
Jackson added that most employers will have policies that specify when they require medical certificates and in what circumstances.
For example, it might be for an absence of more than a single day or it might be on a single day after a public holiday.
“It’s important to have evidence rules around the supply of sufficient confirmation of the basis for accessing the paid personal leave,” said Jackson.
“But assuming that’s in place, if an employee has accrued paid personal leave over a considerable period of time they might well be entitled to access that, and as long as they keep providing medical certificates then that’s what the entitlement is there for.”
Jackson said that it’s important to bear in mind that under the Fair Work Act it is unlawful to terminate a person or take adverse action against them because of their access to paid personal leave or because of their temporary absence from work.
A temporary absence is three months in any 12 beyond your entitlement to paid personal sick leave.
For instance, take an employee who broke both legs and a couple of ribs parachuting on the weekend.
The person is off work for a number of weeks for hospitalisation and then rehab. He/she is accessing paid personal sick leave during that period and they are providing medical certificates that cover them for that period.
Something like that is probably relatively easy to deal with because it’s physical and it’s readily ascertainable on the medical evidence (how long it’s going to take for them to recover).
But what if a person has a recurrent mental illness, such as a depressive condition?
It is not obviously visible to the eye and they might be in and out of the office.
“The person always provides medical certificates which simply say ‘medical condition’ and again you can’t really get down to looking into whether they can perform what are called the inherent requirements of the job if they are simply accessing their accrued personal sick leave because that’s what it’s there for - it’s a workplace right,” he said.
“You will have an indefensible general protections claim to say nothing of a disability discrimination claim if you were to take adverse action against a person because they are accessing their personal sick leave in circumstances where they are providing the required evidence that they are in fact ill or injured.”