An employee with no sick leave outstanding has requested recent sick leave to be taken out of her annual leave which is fine but will not provide a Doctor's certificate as it is now annual leave. Where do we stand?
According to the National Employment Standards (the NES) contained within the Fair Work Act 2009, annual leave can be used at any time when agreed between the employee and employer.
However, when an empoyer is presented with an immediate request from an employee for them to take annual leave as their personal leave is exhausted there are some things to consider:
If the employer requires it, an employee must provide evidence that would satisfy a reasonable person that the employee is not fit for work because of a personal illness or injury. Or if the employee is taking carer’s leave, they must provide evidence that they are required to provide care or support to a member of their immediate family because of an illness, injury or unexpected emergency.
Under the NES a full time employee is entitled to ten days of paid personal/carer’s leave which accrues from year to year. When an employee has exhausted their entitlement to paid personal/carer’s leave, they are able to access unpaid personal/carer’s leave, however the same notice and evidence requirements will apply for unpaid personal/carer’s leave as those for paid leave.
When employees who have exhausted their paid personal/carer’s leave entitlements are unfit for work, they often prefer to have the absence taken out of their annual leave entitlement rather than receive no payment for the day. This option is possible, however employees cannot expect this in every scenario. Annual leave is to be taken by mutual agreement between the employer and employee, however an employer cannot unreasonably refuse the request.
In the scenario of an employee wanting to take annual leave in lieu of unpaid personal/carer’s leave, it is reasonable for the employer to ask for supporting evidence. If the employee does not provide evidence then the employer may well be within their rights to reasonably refuse the request, because the employer had no notice that the employee would be taking the annual leave. As a result the employee would have to take unpaid personal/carer’s leave.
An employee being absent due to an illness but having that leave paid as annual leave is a different scenario to an employee simply requesting annual leave. An employee who takes a period on annual leave must comply with their own employer’s requirements (such as complete an application form and provide a certain amount of notice). However they are not required to provide a reason for why they wish to take annual leave.
Please call the Ai Group Workplace Advice Line on 1300 55 66 77 for further information about personal leave and/or annual leave.
Clinton is the Publications Manager at Ai Group. He is responsible for a number of key services including Annotated Modern Awards, Workplace Relations Handbooks and the management of Ai Group’s HR and Health & Safety Resource Centres. Clinton has a Masters in Employment Relations and previously held advisory roles with the Workplace Authority and Fair Work Ombudsman.
