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Employee sick over Christmas? Must re-credit leave

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HC Online | 28 Nov 2013, 12:03 PM Agree 0
Some employers have adopted a ‘too bad, so sad’ mentality regarding employees who become sick whilst on annual leave, but unbeknownst to many, the Fair Work Act actually obliges HR to re-credit annual leave in place of sick days.
  • Lee | 18 Dec 2012, 03:27 PM Agree 0
    Is there a time period that applies? ie. Does the employee need to be sick for a period of 5 days or does it apply to any time period?
  • Gary Taylor | 18 Dec 2012, 04:52 PM Agree 0
    Interestingly, this provision does not apply consistently outside of Australia. Several countries work on the basis that paid sick leave is when the individual is too sick to work - it is a protection of earnings. Therefore, when someone has flu while on vacation, the "tough luck" principle could apply, in that the individual would not have been coming to work, and therefore cannot claim additional vacation. Some countries have a compromise, whereby only days hospitalized can be swapped back.
  • MM | 18 Dec 2012, 11:25 PM Agree 0
    Don't forget one key thing that still applies - even when ill during annual leave, the employee has to notify the employer as soon as practicable of their illness and advise of the expected duration. Unless the employee is in the "wilds of Africa", there's no good reason why they shouldn't notify the employer while they are on annual leave instead of waiting a few weeks to let the employer know when they get back from leave. And while it would be a brave employer who said "no" - they are within their rights to refuse to convert annual leave to sick leave if the employee themselves hasn't complied with the notification requirements of Section 107 of the Fair Work Act
  • LJ | 08 Jan 2013, 03:05 PM Agree 0
    How does this apply if an employee is sick during a period of shutdown, and when all employees are on forced annual leave?
  • John Howie | 21 Feb 2013, 10:18 AM Agree 0
    This is another case of the Fair Work Act being out of touch with small businesses and employers. The employer should not have to pay sick leave is an employee gets ill (for whatever reason) during annual leave. Sick leave should only apply to illness, with all supporting documents, that occurs during outside of annual leave.
  • February | 21 Feb 2013, 05:59 PM Agree 0
    You need not worry - Fair Work Australia does not do anything anyway, seriously have you tried to contact Fair Work Australia ? You get put "on hold" for 20 minutes !!! Bill Shorten and Kate Ellis need to ring Fair Work Australia and see how the service really works.
  • Greg Schmidt | 29 May 2013, 11:28 AM Agree 0
    I fundamentally disagree with the interpretation of the NES expressed in the main article. Section 89(2) of the Fair Work Act only applies if a period of "other leave" is included in a period of annual leave - and a period of paid personal leave could only be included if section 97 of the Act applies. Section 97 provides that "An employee may take paid personal/carer's leave if the leave is taken ... because the employee is not fit for work because of a personal illness, or personal injury ...". An employee absent on approved annual leave does not require approval for absence because they become ill - they already have approval to be absent. Section 97 therefore does not apply to the absence, and there is no grant of personal leave inserted into the existing period of annual leave.

    Having said that, there's nothing to prevent an employer allowing an employee to have leave re-credited in this way - but that's a policy decision, not a legislated obligation under the NES.
  • MM | 31 May 2013, 04:05 PM Agree 0
    Sorry Greg. While you might fundamentally disagree, it is the opinion of Fair Work should an employee complain that would be the deciding factor. My organisation has put this question to FWO on more than one occasion and always gotten the same answer - employees can claim for any period of personal/carer's leave in accordance with the Act even when they were on paid annual leave at the time.

    I can understand that this leaves an employer with a great deal of uncertainty and the possibility that an employee will abuse the leave "loophole", but the legislation is what it is.
  • Lisa | 28 Nov 2013, 03:42 PM Agree 0
    Like LJ I'm also keen to know what happens when someone falls ill during a forced shutdown period (eg. Christmas - New Year), and therefore they wouldn't have been able to come to work even if they were healthy. I can see this is a loophole for employees to take advantage of, but have been unable to find an answer to this so far, so would appreciate anyone being able to assist.
  • ParraHR | 29 Nov 2013, 03:04 PM Agree 0
    It all comes back to IF the employee challenges it at Fair Work. A lot of employers will still say to staff that as the person was on annual leave already. Your sick leave is for when you cannot come into work and it protects your earnings (as stated in a comment above) - it is not an entitlement.

    Maybe old world thinking - but I would say the majority of employers see it and apply it that way.
  • Community HR | 04 Dec 2013, 02:59 PM Agree 0
    If the forced shutdown period is taken as AL then the provision to re-credit AL, in place of paid personal leave, will still apply.
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