The Federal Circuit Court’s decision in Collison v Brighton Road Enterprises Pty Ltd [2016] FCCA 186 (‘Collison’s Case’) is a reminder that employers must tread carefully when dealing with employees who are on sick leave, or who are returning from sick leave.

Rights to paid leave

Full-time employees are entitled to a minimum of ten days paid personal leave. Such leave can be taken by an employee if he or she is unfit for work on account of a personal illness or injury. Employers may request that employees on sick leave provide a medical certificate as evidence that they are entitled to take this leave.

Importantly, employers are not entitled to dismiss an employee because the employee is temporarily absent from work because of illness or injury for which they have provided a medical certificate.

Employers will also leave themselves vulnerable to a successful general protections claim if they take adverse action against an employee because he or she exercised his or her right to take sick leave.

What if you believe an employee is not genuinely ill?

In Collison’s Case, an employer did not believe that an employee was genuinely ill. In the employer’s view, they were being ‘set up’ by a dishonest employee who was putting themselves in a position to make a workers’ compensation claim.

The employer hastily sent an angry email back to the employee demanding to be given the opportunity to speak with the employee’s general practitioner about her ability to return to work in the short term. The employer said that a failure to comply with this direction could ‘jeopardise her employment’. The employee was dismissed 24 hours later.

Judge Jones found that the employer had taken adverse action against the employee by reason of her workplace right to take sick leave and to make a workers’ compensation claim.

Put in place a robust sick leave policy so that you can manage these issues within the law

The decision in Collison’s Case is a reminder that employers must have proper policies in place to deal with how employees are to take sick leave, and how to deal with any disputes as to the legitimacy of taking sick leave. Having a clear policy in place will ensure that emotional and rash decisions are not made that either ignore employee right or expose the employer to significant liability. We can help you draft this policy.

A good workplace sick leave policy in the case of Collison’s Case may have provided that:

  • An employee must provide a medical certificate in respect of each sick day taken;
  • The employee will be given a reasonable period within which to procure and provide the certificate;
  • If the employer is not satisfied with the sick certificate, then the employer will seek permission to speak with the employee’s doctor, which permission may be granted to refused;
  • If the employee refuses permission for the employer to speak with their doctor, or the employer has a reason not to accept the opinion of the employee’s doctor, then the employer may direct the employee to submit to an independent medical examination (IME);
  • If the advice received by the employer about the employee’s condition is such that the employer can reasonably reach the view that the employee can not and is unlikely to be able to fulfill the inherent requirements of the particular position concerned, then the employer may terminate the employee in accordance with the law.

Ideally, the policy would also set out the timeframes within which each of these steps is to be taken and give the employee sufficient time to respond.

What to do next

Get us involved now.

We strongly recommend that you take the time to put in place an appropriate policy to manage potential sick leave issues, and avoid the sort of liability incurred in Collison’s Case. To kick this off, call and speak with one of our lawyers:

  • Call John Morrissey on 0407 069 507
  • Call Sladjana Skoric on 0410 900 248

Managing Leave: A Guide for Employers

For more useful information, Download the JFMLAW’s new e-book Managing Leave: A Guide for Employers. It is a concise guide that assists employers in effectively dealing with all aspects of employee leave.

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