You may have encountered a sudden illness or injury and have had to take some time off work. You may have sustained such an injury at home or at work, and to ensure you fully restore yourself to good health, you have taken time off from your job. It may be the case that your illness or injury prevents you from safely returning to work and performing the inherent duties of your job.
Fair Work Act 2009(Cth)
Every permanent employee is entitled to sick leave. The Fair Work Act 2009 (Cth) has changed the title of sick leave to personal leave. This Act also entitles you to 10 days of paid personal/carer’s leave for each year of service under section 96. Your entitlement to be paid personal/carer’s leave accrues progressively during a year of service according to your ordinary hours of work, and accumulates from year to year. Although your paid personal/carer’s leave accrues year to year, you are not entitled to be paid your sick leave entitlements upon the termination of your employment, unless it is in accordance with an award or enterprise agreement which governs your employment.
If an award or enterprise agreement enables you to cash out your accrued paid personal/carer’s leave, there are further requirements which you must meet under section 101 of the Act. This requires that
– Your paid personal/carer’s leave not be cashed out if it would result in your remaining accrued entitlement being less than 15 days; and
– Each cashing out of a particular amount of paid leave must be by separate agreement in writing between the employer and the employee; and
– The employee must be paid at least the full amount that would have been payable to the employee had the employee taken the leave that the employee has forgone.
You are entitled to take your personal/carer’s leave if it is taken because
– You are not fit for work because of your illness, injury; or
– To provide care or support to a member of your immediate family, or a member of your household, who requires care or support because of a personal illness or injury; or an unexpected emergency affecting that person.
Whilst you are on paid personal/carer’s leave, your employer must pay you at your base rate of pay for your ordinary hours of work. In addition to paid personal/carer’s leave, you are also entitled to 2 days of unpaid carer’s leave for each occasion when a member of your immediate family, or a member of your household, requires care or support because of a personal illness, personal injury or an unexpected emergency. You may take unpaid carer’s leave for what is considered a permissible occasion if leave is taken to provide care or support to an immediate family member or household member.
Section 107 sets out procedural requirements to ensure you are able to take personal/carer’s leave. You must give your employer notice of taking the leave as soon as practicable and you must advise your employer of the length of leave. If you are taking paid personal/carer’s leave, unpaid carer’s leave or compassionate leave your employer may request evidence that would satisfy a reasonable person. These requirements must be complied with, otherwise you are not entitled to take leave.
Occupational Health and Safety Act 2004 (Vic)
While you are entitled to exercise your statutory rights to take paid and unpaid personal leave, your employer has certain obligations regarding your return to work. The Occupational Health and Safety Act 2004 (Vic) is in place to protect your safety in the workplace. Its goals are to eliminate risk to health and safety, or to reduce the risks as far as reasonably possible.
Section 21 of the Occupational Health and Safety Act imposes duties on your employer to ensure your safety in the workplace. Your employer, as far as is reasonably practicable, must provide and maintain your working environment to be safe and without risks to health. Failing to do this, or failing to make arrangements to reduce risks as far as possible, will result in your employer contravening the Act. You also have duties to fulfil under the Act, which includes taking reasonable care of your own health and safety, of your work colleagues, clients and customers, and to co-operate and comply with your employer for all safety requirements implemented.
You must not intentionally or recklessly interfere with or misuse anything provided at your workplace in the interests of health, safety or welfare. The consequences of this Act should not be taken lightly, as it may be an offence to contravene the provisions of the Act and you may be liable for criminal penalties.
To enable your employer to provide a safe and healthy workplace for yourself, your colleagues and clients, your employer is able to monitor your health. Your employer must, as far as is reasonable practicable –
– Monitor your health, as well as your colleagues; and
– Monitor conditions at any workplace under their management and control; and
– Provide information to you concerning health and safety at your workplace.
Fulfilling these duties may require your employer to keep information and records relating to your health and safety, and may employ or engage persons who are suitably qualified to provide advice to you.
In exercising these duties, your employer may request that you attend a doctor’s appointment. This is of particular relevance if you have taken extensive time off for illness or injury. If you were injured at work, you may be able to lodge a WorkCover claim to assist you in your recovery.
In every employment relationship is a duty on your behalf to obey your employer’s lawful instructions. Any direction which contravenes occupational health and safety requirements, or is unreasonable, is not a lawful direction which must be obeyed. Your decision not to follow your employer’s directions may lead to disciplinary proceedings or your dismissal. You should be careful when choosing not to follow your employer and seek legal advice if you are concerned about the ramifications.
Your employer must ensure that when you return to work, your illness or injury is reasonable accommodated and that tasks are allocated to you are suitable for your health condition. Your return to work may be negotiated by your employer’s human resources team and your treating physician. A return to work plan should be executed by your employer to ensure that all reasonable workplace support, aids and modifications are in place. You should talk to your personal doctor about your capacity to return to work, and what tasks you are able to perform without aggravating your injury or illness. To ensure that you are fit to perform the duties which are inherent to your job, it may be reasonable in the circumstances for your employer to request that you attend a doctor’s appointment. Your employer must take all reasonable steps to ensure your safety in your workplace, hence a doctor’s consultation may be reasonable in the circumstances.
If your job involves physical work, it may be possible to provide you with light, modified or office duties whilst you transition to full duties. However both you and your employer must ensure that no task aggravates or worsens your injury or illness, and the guidance of a medical practitioner is the best method to achieve a safe and effective return to work plan. Your employer may have a preferred doctor for you to see, however you are able to consult with your preferred physician.
It is important to note that your employer cannot unlawfully discriminate against you on the grounds of your injury or illness. Protection against adverse action on these grounds is afforded to you under the Equal Opportunity Act 2010 (Vic) and the Fair Work Act 2009 (Cth). However your employer can discriminate against you if your illness or injury prevents you from fulfilling the inherent requirements of your position. If you believe that your employer is discriminating against you on these grounds you should seek legal advice from an experienced employment lawyer, and see here for more information.