The right to take sick leave forms part of Australia’s National Employment Standards (‘NES’) and is considered sacrosanct within our workplace relations system. Whilst employers may be entitled to instigate disciplinary action or procedure against employees in certain circumstances, this right should not be exercised so as to subvert an employee’s right to sick leave taken for reason of injury or illness.
Under section 107(3) of the Fair Work Act 2009 (Cth), employees must provide their employer with evidence that would satisfy a reasonable person that sick leave was taken for reason of personal illness or injury. This typically involves the provision of a medical certificate verifying the employee as unfit for work. Provided that such evidence is produced, employers must accept that the employee has validly taken sick leave and cannot compel attendance at a disciplinary meeting.
Oftentimes, employers attempt to challenge whether an employee is genuinely ill or injured during a period of sick leave so as to force attendance at a disciplinary meeting. It is important to recognise that employees who have provided a medical certificate verifying their lack of fitness for work are not obliged to further justify their taking of sick leave unless there is a genuine and reasonable belief of dishonesty. Mere suspicion that the employee does not have a valid reason for sick leave is insufficient to reject a medical certificate as evidence under section 107(3) of the Fair Work Act 2009 (Cth).
Whilst employers generally cannot require an employee to attend a disciplinary meeting whilst on sick leave, they may seek to carry out the disciplinary process via written correspondence to the employee. Common examples of this include a letter posted to the employee’s home or sent to their personal email whilst they are on leave. This conduct could be considered lawful where the employee’s medical condition does not restrict them from understanding and responding to such correspondence within a reasonable timeframe. If the employee believes the timeframe for a response to be unreasonable they may request and extension of time and should provide evidence from a doctor or legal representative to substantiate the reasons for the requested extension. If the employee’s medical condition prohibits them from being able to respond to the employer, a medical certificate confirming the employee’s unfitness to do so should be provided.
All employees must be afforded procedural fairness in any disciplinary process and should not be subjected to disciplinary process for exercising their right under the NES to take sick leave. If you believe that you have been treated unfairly by your employer, it is important to seek legal advice to understand your rights and obligations as an employee and any available recourse.