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Can personal leave warrant discipline or dismissal?

Personal leave (covering both sick and carers leave) is both an entitlement and workplace right that is provided to all full-time and part-time employees under the National Employment Standards (NES). The  NES provides that an eligible employee is entitled to a yearly personal leave entitlement of 10 days for full-time employees, and pro-rata for part-time employees, that is based on their ordinary hours of work. An employee can take as much paid sick leave as they have accumulated where they are not fit for work because of an illness or injury, provided that they comply with requests from their employer to provide reasonable supporting evidence.

The Fair Work Act 2009 prohibits an employer from taking adverse action against an employee for having utilised a workplace right. A person will be deemed to have a workplace right under the Act if they:

  • are entitled to the benefit of a workplace law, workplace instrument or an order made by an industrial body.
  • have a role or responsibility under a workplace law, workplace instrument or order made by an industrial body.
  • are able to initiate or participate in a process or proceedings under a workplace law or instrument.
  • are able to make a complaint or inquiry to a person or body with capacity to seek compliance with a workplace law or instrument, or
  • are able to make a complaint or inquiry in relation to their employment.

Given the general protections that are afforded under the Fair Work Act 2009, an employer generally cannot discipline or terminate an employee on the grounds of them having exercised a right to take paid personal leave.

Non-temporary absences

Where an employee’s absence:

  • exceeds a period of three consecutive months, or a total of more than 3 months over a 12 month period and
  • includes a period of unpaid personal leave

The employee may no longer have protections from unfair dismissal.  

Dismissal of an employee who has been absent for more than three months (including a period of unpaid leave) is a complex matter and requires that due process be followed. Advice should be sought from our HR Advisory team prior to such a process being commenced. 

When can disciplinary action occur?

While the taking of personal leave itself is a protected entitlement, an employer may have a valid reason to undertake a disciplinary process with an employee for reasons that are associated with their taking of personal leave.

For example, where:

The employee has failed to comply with notification and evidence requirements when taking a period of personal leave.

An employee is required to let their employer know that they are going to be absent on sick or carer’s leave as soon as is reasonably possible (this may at times be after the leave has started).

An employee may also be requested to provide evidence that supports that the employee took the leave because they:

  • were not able to attend work because of an illness or injury, or
  • needed to provide care or support to an immediate family or household member.

Should an employee refuse to comply with the requirement to provide notification of their absence or to provide reasonable evidence to support their absence, disciplinary action may be warranted.

The employee takes a period of personal leave when it can be evidenced that they did not have an entitlement to do so.

For example, if an employee tales a period of personal leave when they were not unfit for work due to illness or injury or where they were not required to provide care for an immediate family or household member.

If you do have genuine grounds for disputing that an employee is actually unfit for work, you can seek further information to support their absence. Given the seriousness of such an allegation, you will need genuine evidence that the employee was not unfit for work at the time the leave was taken.

It such circumstances, it is important not to jump to conclusions regarding whether the employee had an entitlement to take personal leave, as an employee may be certified as being unwell for work but continues to be fit to engage in other activities.

The employee does not cooperate with your efforts to meet your legal obligations in relation to managing work health and safety.

For example, if the employee refuses to meet with you to discuss options for a return to work or fails to participate in a return to work plan.

When undertaking a performance management process with an employee in relation to matters pertaining to the taking of personal leave, it is essential that the employee is given a chance to explain why they did not meet the requirements and that due consideration be given to their response. If the conduct continues, and the employee continues to be unable to give satisfactory explanations for the non-compliance, disciplinary action may be considered on grounds of unauthorised absences from work and the failure to meet requirements for taking personal leave.

Advice from our HR Advisory team should be sought prior to disciplinary action or dismissal being considered on the grounds of non-compliance to personal leave requirements as there are a number of potential claims that an employer may face in such situations including general protections claims, unfair dismissal claims and unlawful discrimination claims.

If you require assistance with managing such matters, or if you require HR Advice, please contact the team at HR Advice Online on 1300 720 004.

Information in HR Advice Online guides and blog posts is meant purely for educational discussion of human resources issues. It contains only general information about human resources matters and due to factors such as government legislation changes, may not be up-to-date at the time of reading. It is not legal advice and should not be treated as such

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