Australia: Chucking a sickie: a workplace entitlement or grounds for disciplinary action?

Managing the taking of employees' personal leave can be a tricky process, especially when an employee takes regular sick days and the business suspects that they are not genuinely ill and are instead 'chucking a sickie'. In Australia, taking a sickie has unfortunately become a part of many workplace cultures, with some employees believing that it is their workplace entitlement to take a sick day whenever they feel like it, whether it is because they want to enjoy a long weekend by taking Friday or Monday off or because they just can't face the idea of going to work. However, despite the fact that many managers assume that they can't take any action against an employee who they suspect might be misusing their personal leave, there are steps that businesses can take to address the issue.

Employees are entitled to accrue ten days of personal/carer's leave per year, which enables them to take time off work when they or one of their immediate family members is sick or injured. However, whilst taking a day off when genuinely sick is a workplace right, which means an employer can't take adverse action in response to it, this does not stop employers from taking steps to: (1) prevent employees from 'chucking a sickie' and (2) confront an employee when the business has evidence of them misusing sick leave.

Preventing and monitoring sickies

Under the Fair Work Act, an employer can request that an employee provide a medical certificate or a statutory declaration for any personal leave that they take. Whilst requiring an employee to produce a medical certificate for time away from work due to illness can assist in reducing the likelihood of employees chucking a sickie, most people would agree that it is usually not difficult to get a medical certificate from a doctor, even when a person is perfectly well.

For this reason, it is important for businesses to have mechanisms in place addressing sick leave. This can include a workplace policy as to how sick leave is to be notified and what evidence is required when an employee takes sick leave. It also requires managers to monitor the taking of sick leave and identify any patterns that may be occurring in relation to when an employee is taking sick leave and the reasons as to why.

Some points that managers and employers can implement to reduce the likelihood of employees taking 'sickies' include:

  • Require an employee to phone and speak to their manager when they are sick and need to take a day off work. A phone call, as opposed to a text message or email can lower the chances of an employee chucking a sickie when they know they are required to have a conversation with their manager;
  • Consider when an employee will be required to produce a medical certificate for sick leave. Is it for any absence or for periods of two days or longer? Alternatively, a business could require an employee to produce a medical certificate if they are sick before or after a weekend or a public holiday to reduce the temptation to take an extra-long weekend;
  • Don't make it easy for employees to find out their personal leave balance as this can encourage employees to use their accrued leave, even when they are not sick;
  • Have a comprehensive policy addressing the above issues and setting out the processes involved in employees taking personal leave;
  • Attempt to ascertain the reason as to why people may be taking days off work when they are not genuinely sick. For example, are they demotivated at work, do they have too much work, are they involved in a conflict with colleagues which means they don't want to come to work? Addressing issues which are causing employees to take time off work will go a long way in reducing employee absenteeism;
  • Monitor employee's absences and if a pattern emerges, forexample, an employee is always sick on Monday's or Friday's, consider addressing the issue in an appropriate, procedurally fair manner.

When misusing personal leave can result in disciplinary action

There tends to be an assumption amongst managers that once a medical certificate has been provided by an employee, they cannot question its authenticity or put an allegation to an employee that is suspected of 'chucking a sickie'. Fortunately for managers who are in this position, this is not the case if there are genuine concerns and supporting evidence that an employee has misused their personal leave.

If an employee produces a medical certificate which the business thinks is suspicious, the first step should be to contact the doctor or medical centre to determine whether they did in fact issue the certificate. Whilst the doctor will not be able to provide information about a patient or their medical history, in most cases, they should be able to confirm whether the certificate is genuine.

In Ropafadzo Tokoda v Westpac Banking Corporation [2012] FWA 1262, an employee provided a medical certificate without the doctor's provider number on it. Suspecting that the certificate may be false, Westpac phoned the doctor's surgery, which confirmed that they did not issue the certificate. Westpac put allegations to the employee that she had provided a false medical certificate, which she eventually admitted to. Westpac dismissed the employee, who went on to make an unfair dismissal application. Fair Work Australia found that the dismissal was fair on the basis that the employee had been dishonest, fraudulent and had breached Westpac's code of conduct by producing a false medical certificate.

Similarly, if there are other grounds for believing that an employee has misused their sick leave and there is sufficient evidence, allegations should be put to the employee and they should be required to respond. In CFMEU v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157, an employee who threatened (and then actually took) sick leave after his annual leave request was denied, had his employment terminated following a procedurally fair investigation. Despite the Court noting that it might be unjust given that the employee had been legitimately sick, the employer had not terminated the employee because he took personal leave but because his conduct had irreparably broken the employment relationship.

Be cautious

Despite there being a temptation to rush out and confront every employee who has been suspected of chucking a sickie, which given the trend in Australia, there are probably many employees who fit into this category, it is important that businesses act cautiously when investigating the misuse of personal leave.

Under section 352 of the Fair Work Act, an employer must not dismiss an employee because they are temporarily absent from work because of illness or injury. Further, both state and federal discrimination legislation makes it unlawful for an employer to subject an employee to a detriment, including disciplinary action or termination of their employment on the grounds of their disability, which can include a temporary illness.

For this reason, it is vital that a business has sufficient evidence (rather than just mere suspicions) to establish that an employee has misused personal leave prior to taking any action against them, otherwise it could end up in protracted disability discrimination proceedings or facing claims that it unlawfully terminated an employee's employment.

Given the difficulty in taking disciplinary action against an employee who is ill or injured, having a sensible personal leave policy and taking steps to understand the reasons as to why employees are 'chucking sickies' are the most important steps a business can take not only to reduce employee absenteeism but also to increase employee engagement.

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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