Entitlement to Accrued Sick Leave Entitlements

Sub-Division A of Division 7 of the Fair Work Act 2009 provides that all employees “other than casual employees” are entitled to paid personal leave. Section 96 of the Fair Work Act provides that:

  1. For each year of service with his or her employer, an employee is entitled to 10 days of paid/carer’s leave.
  2. An employee’s entitlement to paid personal/carer’s leave accrues progressively during a year of service according to the employee’s ordinary hours of work and accumulates from year to year.”

Section 97 of the Fair Work Act relevantly confirms that paid personal/carer’s leave applies in respect to both an illness of an employee and the illness of an immediate family member or an unexpected emergency affecting a family member.

Ability of an Employer to Request Evidence of Illness of an Employee
Section 107 of the Fair Work Act 2009 provides that an employer is entitled to require an employee who has taken personal/carer’s leave to provide evidence of reasons for taking that leave. The Fair Work Commission has determined that, in the case of illness, an employer is entitled to request an employee to provide a medical certificate that does more than simply refer to the fact that an employee has an illness without identifying the nature of that illness (see, for instance,Australian and International Pilot’s Association v Qantas Airways Limited (2014) FCA32 (6 February 2014)).

Interaction between Absence due to Illness and Anti-Discrimination Laws
There is a tension in the Fair Work Act 2009 between circumstances in which an employer is entitled to terminate the employment of an employee who has been absent from employment for a period, in total, and in combination, which exceeds 90 days (see Section 352) on the one hand and, on the other hand, terminating the services of an employee because the employee is suffering from a disability, contrary to Section 351 of the Fair Work Act and, the Disability Discrimination Act 1992 more generally.

In broad terms, that tension should be addressed by conferring with an employee prior to any decision being made to terminate the employee’s employment with a view to ascertaining:

  1. the nature of the employee’s illness/disability;
  2. the likely duration of the employee’s absence from employment and whether that absence is such that it could be considered that the Contract of Employment has been frustrated as a result of the employee’s inability to perform the inherent requirements of their position; and
  3. whether it is possible for the employer to take reasonable steps to accommodate the employee’s return to work despite their illness or disability.

It is important to obtain specific advice in respect to individual circumstances that might arise when an employer is confronted by such a situation.