Most people tend to underuse rather than overuse their entitlement to paid sick and carer's leave (10 days a year for most full-time employees). But occasionally, employers have to deal with workers who misuse or abuse their sick leave entitlements to the point that it starts to have a real impact on the business.
So, what are your obligations as an employer around sick and carer's leave, and what should you do if you suspect someone is abusing their sick leave provisions? Let’s explore the issue.
In this post we explain:
Under the National Employment Standards (NES), all employees except casuals (and independent contractors) are entitled to paid sick and carer's leave, which they can take if they, their partner, or someone who depends on them (like a child or an elderly parent) is sick or injured.
Sick leave entitlement is based on the person’s ordinary hours of work:
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.
Sick leave abuse occurs when an employee takes sick and carer's leave dishonestly, or for reasons unrelated to illness or injury.
Examples of sick leave abuse may include:
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.
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.
If you have reason to believe an employee has been abusing their entitlement to sick leave - e.g. they have taken sick leave and been seen in a situation that indicates they are not sick or injured, or they have falsified proof of sickness or refuse to provide it - you could consider taking disciplinary action for misconduct.
As we said above, we recommend taking a more informal approach initially, starting with a casual conversation to find out if there are wider issues at play.
If you decide to take disciplinary action, you must ensure the process you follow is fair and reasonable. This means:
You may decide to not take any action (if the employee had a reasonable explanation or the allegations weren’t substantiated) or issue them with either a formal or a final warning, depending on the circumstances. If the issue amounts to serious misconduct, you could move to dismiss the employee, however, be aware that the burden of proof is high (given the seriousness of the allegation).
If an employee is no longer able to do their job because of serious illness or injury, you may have grounds to end the employment relationship.
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:
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.
Regularly taking sick leave that appears to be dubious or dishonest can put real strain on an employment relationship. Sick and carer's leave is a provision for employees to use when needed, but it is not there to “top up” annual or other types 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. Here are a few common patterns of absence that may indicate an employee abusing their sick leave entitlements:
These patterns could be a coincidence, but they may be a concern. If you have concerns, 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.
In certain cases, it may be appropriate to contact an employee’s doctor for clarity on how to support their medical condition (note: you will need the employee’s consent first).
If you have valid evidence that an employee has taken sick and carer's leave for non-genuine reasons, you could take formal disciplinary action for misconduct.
In certain, exceptional circumstances, you may have legal grounds to dismiss an employee for serious misconduct, but you will need a very high standard of proof and follow fair and reasonable process throughout.
If you are having difficulty with employees taking too much sick leave, please get in touch with MyHR.