We have an employee who regularly advises he wont be in, as he hasn't slept well and is too tired. He has a baby, however this baby is now approximately 18 months old. Is this considered a legitimate cause of 'illness' and should we be paying this as sick leave or can we refuse to pay as he is not sick, and he is not caring for anyone under carers leave?
Under the National Employment Standards (NES), all employees (except for casuals) are entitled to paid personal/carer’s leave.
Personal/carer’s leave can be paid leave taken by an employee if they are unfit for work due to illness or injury or it can be taken as carer’s leave. For an employee to be eligible for payment for personal leave under the Fair Work Act 2009 (the Act), the employee must comply with notice and evidence requirements as per section 107 of the Act.
Compliance with theAct requires an employee providing their employer notice of the taking of personal leave as soon as practicable (which may be a time after the leave has started) as well as the period, or expected period, of the leave and providing evidence that would satisfy a "reasonable person" if requested by the employer.
The evidence that would satisfy a “reasonable person” may differ depending on the circumstances, and does not necessarily include the provision of a medical certificate. Generally speaking, it is reasonable for an employer to request an employee provide a medical certificate and if they cannot do so for the employee to provide a valid reason.
If the employee can satisfy the compliance requirements under the Act of providing notice and evidence that they are unfit for work for the period, or that they are providing care to a member of their immediate family or household, then the employee will be entitled to payment for the absence.
An employee who has not slept and cannot work may not have a medical certificate for their absence so it is important that the employer listens to the reason for absence and makes an informed decision.
Lack of sleep may not technically be considered an illness however an employer would need to take into account the nature of the work being performed. For example, if an employee is working in a high risk environment and they are fatigued, they may not be safe to perform their usual duties.
Regardless of the work they perform, most employees may struggle to work productively and complete tasks if they have not slept so this also needs to be taken into consideration by the employer.
An employer should also apply some empathy to the situation, as having a young baby can be a difficult situation for some people to adjust to. In this situation, an employer should consider whether some degree of flexibility can be permitted, for example, can the business alter start and finish times for this employee or can time in lieu be arranged?
For further advice on situations which would give an employee an entitlement to paid personal/carers leave, please pleasecontact us or call the Ai Group Workplace Advice Line on 1300 55 66 77.
