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One of our employee’s has been on annual leave for three weeks, and on their first day back at work, they have provided a medical certificate which states they were sick for four days during their annual leave period. The employee wants to know if they can use their sick leave instead of annual leave for that period. Are they entitled to do this?

Where an employee comes back to work after a period of annual leave and lets the employer know that they were sick for a portion of their annual leave, they can use their personal leave and have their annual leave re-credited.

Under the Fair Work Act 2009, section 89(2) sets out that if an employee is on annual leave, and becomes entitled to another form of leave, other than unpaid parental leave, then the employee is taken not to be on annual leave for that time.  This means that an employee is entitled to swap their annual leave for personal leave.

This however is subject to the employee providing notice and evidence of the illness in line with the employer’s policies and procedures. Notice must be given to the employer as soon as practicable (which may be a time after the leave has started) and must advise the expected period of the leave. Evidence could include a medical certificate, a statutory declaration, or any other evidence that a reasonable person would be satisfied with.

If the employee provides the appropriate notice and a medical certificate covering the days they claimed they were sick, the employer should do a payroll adjustment to pay personal leave for that period and re-credit their annual leave back to them.

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