November 5, 2018
At some point during their employment, every staff member will need to take personal leave. Whether it’s due to the flu or caring for a sick parent, life happens and we need to take time off work.
Under the National Employment Standards (NES) every permanent employee is entitled to 10 days of personal leave each year. For most employees, this is ample. Trouble arises when an employee takes longer periods of personal leave, whether paid or unpaid.
If not effectively managed, extended personal leave can have a significant impact on the successful operation of your small business, however every business is required to adhere to the National Employment Standards (NES), or more favorable terms in applicable industrial instruments.
How do you balance your business operations with an employee’s entitlement to personal leave? As a business owner, it is vital that you understand these rights in relation to extended personal leave.
Personal leave (also known as sick/carer’s leave) is an entitlement which permits an employee to take paid time off to help deal with personal illness, caring responsibilities and family emergencies. The minimum entitlement of paid personal leave for a full-time employee is 10 days per year. Paid personal leave accrues during the year in accordance with the number of hours the employee works. Personal leave also accumulates when the employee is on period of paid leave, such as annual leave. However, personal leave does not accrue if they are on unpaid leave.
Employees are obligated to give notice for personal leave as soon as they can. An employer has the right to request evidence, which may include proof such as a medical certificate or a statutory declaration. There is no entitlement to payment once the accrual is used up.
Sometimes a staff member will take longer periods of personal leave. This could be for a variety of reasons, but it raises a common issue: what are the obligations of the employer and the rights of the employee in instances of extended personal leave?
The most effective way to manage extended employee personal leave is to establish clear written guidelines highlighting what employees are entitled to. If employees are away from work often and taking extended personal leave, it is crucial that the employer makes them aware of the guidelines and documents their absence in each instance, in case it is needed for reference down the track.
As with many things in the world of employment relations: it depends. An employee cannot be terminated as a result of a temporary illness. So long as evidence of inability to work is provided, an employee can be protected from dismissal for exercising their workplace right to be on personal leave. In these cases, the employee is on a period of unpaid leave.
However, if the employee’s absence extends beyond what is temporary, as defined by the Fair Work Regulations (usually beyond three months), you may consider termination once you have undertaken the necessary process. It is important to speak with your Employsure advisor first if you are not sure whether termination is legally acceptable.
Ideally, you want to establish clear written policies regarding personal leave and extended personal leave in workplace documents, such as employee handbooks, contracts or document agreements with employees.
If you’re unsure of your obligations or how to implement extended personal leave policies in your workplace documents, we’re here to help. Employsure clients can call us on 1300 651 415 to discuss, or email [email protected]
If you’re not a member of Employsure and you’d like to find out how we can help, book a free meeting with an Employsure representative here.
To help businesses continue operating during the COVID-19 pandemic, the NSW Parliament has amended the Long Service Leave Act 1955 (NSW) to make the taking of...
Getting sick is a part of life and happens to the best of us. While covering sick employees is tough, the last thing you want is staff members coming to work...
In August 2019, the Federal Court found in favour of workers at a Cadbury factory who were arguing that as they regularly worked 12-hour shifts they should...
Becoming a parent can be overwhelming and demanding, so it’s no surprise that the last things on the mind of many new parents is their job. As an employer,...