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:
For each year of service with his or her employer, an employee
is entitled to 10 days of paid/carer's leave.
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
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
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:
the nature of the employee's illness/disability;
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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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