Most people tend to underuse rather than overuse their entitlement to paid sick leave (10 days a year for most full-time employees). But occasionally, employers have to deal with employees who request or use so much sick and carer’s leave it starts to have a real impact on the business.
So what should you do if you suspect someone is abusing sick leave provisions? Let’s explore the issue.
A quick look at paid sick and carer's leave entitlements
Under the National Employment Standards (NES), all employees except casuals (and independent contractors) are entitled to paid sick and carer's leave if they, a member of their immediate family or household is sick or injured.
Sick leave entitlement is based on the person’s ordinary hours of work:
- Full-time employees are entitled to 10 days each year.
- Part-time employees are pro-rata (calculated as 1/26 of an employee’s ordinary hours of work in a year).
Sick leave starts accumulating from an employee's first day of work and the balance at the end of each year carries over to the next year.
Registered agreements, awards, or employment contracts can set out different entitlements and requirements for paid sick leave, but they can't provide less than the NES minimums.
Learn more about employee sick and carer's leave entitlements.
Managing people who take a lot of sick leave
Dealing with a team member who is taking lots of sick leave can take some patience and tact, but it is important to start from a position of helping the person manage anything that might be going on, rather than mistrust.
Under the Fair Work Act, employees are required to notify the business that they intend to take sick carer’s leave as soon as they can - either before they are due to start work or as soon as possible afterwards. They should also say how long they expect to be off work.
If an employee wants to take sick leave but has no days remaining, the employer and employee can agree to either use annual leave (if available), take leave without pay, or provide sick leave in advance.
We recommend recording when other leave is used instead of sick leave - this helps build a case should it become an issue as well as supporting you in managing the employee’s overall wellbeing.
You shouldn’t decline a sick leave request or require (or knowingly allow) anyone to work while they are sick, whether that is at the workplace or remotely.
Asking for evidence of sickness
Employers have the right to request employees on sick or carer’s leave provide proof of illness or injury (or they need to provide care or support to an immediate family or household member) once the person has been off work for 1 day or less.
There are no strict rules on what type of evidence needs to be given, but it must convince a reasonable person that the employee was genuinely entitled to sick leave. A medical certificate from a doctor or statutory declaration are the most common forms of proof.
If the person refuses to provide evidence of illness (or falsifies the proof), you could consider taking disciplinary action to address their behaviour. However, we recommend taking a more informal approach initially, to work with the person to see what’s going on and find solutions.
If the person has been using a lot of sick (or other) leave, there might be wider problems to consider, e.g. low engagement, bullying or personality clashes, health issues or other concerns outside work.
This is where open, honest communication and supporting the person can help. Explain how their absence is impacting the business but also try to understand what is going on for them. They may benefit from the help of your organisation’s Employee Assistance Program (if you have one) or other form of counselling.
Can I fire someone for taking too much sick leave?
Employers aren’t obliged to keep an employee’s position open indefinitely and may have grounds to end the employment relationship if the person is no longer able to do their job because of serious illness or injury.
General protections prevent an employer from dismissing an employee who is away for less than 3 consecutive months (or less than 3 months in total over the last year), or is still using their paid sick leave. Employees need to provide evidence of their illness or injury.
Employees may also be protected from dismissal for specific periods under state and territory workers compensation or rehabilitation laws.
If an employee is no longer protected and you have given them a reasonable time to recover, you may be able to terminate their employment due to medical incapacity. As with any dismissal, it should be your last resort, and you need to follow fair and reasonable process to determine if the person’s incapacity means they are unable to perform their duties or their is a potential risk to other workers.
It’s not a disciplinary matter - it is no fault of the employee, after all - and depends on the person’s circumstances. You need to balance the needs of the business with fairness to the person.
Here are the key steps before you make a decision on ending their employment:
- Conduct a fair enquiry into the person’s medical situation and prognosis, and their ongoing needs (it is not your place to determine how a person should recuperate).
- Notify the employee of the possibility of termination.
- Give them an opportunity to provide feedback and take it into account.
- Explore options for temporary cover, alternative duties or work arrangements, e.g. working from home, staggering their return to work.
- Consider the employee’s length of service and whether the job or business contributed to the injury/sickness.
Be sure to also check what is stipulated in any applicable modern award or registered agreement, the person’s employment contract, and any company policies, e.g. rehabilitation and return to work policy.
If the person has an existing medical issue that they failed to disclose when you hired them, you may have other disciplinary action avenues available to you. However, it is important to note that it is up to the employee (or candidate) to decide whether or not their medical situation will negatively affect their work. For example, if they didn’t disclose an anxiety disorder because it is being actively managed and they didn't believe the duties of the role would impact their condition, your options for disciplinary action may be limited.
Faking illness or pulling “sickies”
Regularly taking sick leave that appears to be dubious or dishonest can put real strain on an employment relationship. Sick leave is a provision for employees to use when needed, but it is not a way to augment annual or other forms of leave.
Again, if you suspect an employee is misusing sick leave, we recommend taking an informal approach in the first instance. Start with a casual conversation to find out if there are wider issues at play.
If the issue persists, examine the pattern of the sick leave. A common example for someone who works Monday to Friday is taking sick leave either side of the weekend. This could be a coincidence, but it may be a concern. Raise the pattern with the employee and then consider putting other measures in place, e.g. explore potential shift changes or work from home arrangements, or require the employee to get a medical certificate for every instance of sick leave.
You can also talk to MyHR about whether it’s appropriate to contact the employee’s doctor for clarity on how to support their condition (note: you will need the employee’s consent first).
If you have valid evidence that the employee has taken sick leave for non-genuine reasons, you could then take formal disciplinary action or begin the process for dismissal on the grounds of medical incapacity.
In certain, exceptional circumstances, the organisation may have legal grounds to dismiss an employee for serious misconduct, but case law has established that you will need a very high standard of evidence (given the seriousness of the allegation) and follow fair and reasonable process throughout.
If you are having difficulty with employees taking too much sick leave, please contact MyHR.
