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Each month we tap into the AHRI:ASSIST resource centre to find the
most topical questions members are asking. This month we look at
NEED EXTRA INFORMATION?
Can an employee use carer’s
leave to look after their
wife/partner who has given
birth to a child? What if it were an
Ordinarily the employee would be required to take this leave
as concurrent parental leave. However, if in the case of an
emergency caesarean this would fall within the definition of ‘an
unexpected emergency’ affecting a family member and would
probably entitle the employee to paid carer’s leave.
Q CAN I WITHHOLD SICK LEAVE PAY UNTIL A MEDICAL
CERTIFICATE IS PROVIDED?
You can only require a medical certificate as a condition for
payment if it is reasonable. It will generally be reasonable when
the period of sick leave is two or more consecutive days, or where
there is a pattern of taking sick leave before or after weekends or
public holidays. G enerally, you cannot withhold sick leave pay
for one-off days when a certificate has not been provided.
Q CAN I IMPOSE RULES ABOUT THE WAY THAT EMPLOYEES
GIVE NOTICE OF SICK LEAVE OR CARER’S LEAVE
ABSENCES, AND DISCIPLINE EMPLOYEES IF THEY DO NOT
OBSERVE THESE RULES?
You can insist that an employee notify you as soon as possible
about taking leave and the expected leave period. However, you
cannot insist that this notice be given by a particular time before
work is due to start.
If an employee does not give notice as soon as practicable
or in the prescribed way, you can discipline the employee.
However, you will need to be prepared to defend any claim that
the discipline is because of the fact the employee has taken sick
or carer’s leave, as opposed to the way it has been taken (which
claim might be raised as a contravention of the FW Act general
QWE HAVE AN EMPLOYEE WHO IS FREQUENTLY ABSENT FROM
WORK. HOWEVER, THEY PROVIDE A MEDICAL CERTIFICATE
EACH TIME. IS IT REASONABLE TO REQUEST THEY SEE A DOCTOR
OF OUR CHOOSING TO ASSESS THEIR CAPACITY TO WORK?
Generally speaking, as an employer you only need to know if an
employee is ill or injured if it is affecting the ability to perform the
requirements of the job, or if there is a need to make an adjustment
in the workplace to meet your WHS responsibilities.
This can be a delicate scenario, particularly when the employee
has not volunteered information and might fear discrimination
in the future. If you feel that the employee’s ability to perform
job tasks is being affected, you are entitled to make enquiries. We
suggest the following steps to address ill or injured employees:
1. Be proactive – Have an informal chat about how the employee
is coping with the job and that you have noticed they have
been absent from work on a regular basis. This conversation
should ideally focus on providing the employee with support,
and emphasise that this is not a disciplinary or performance
2. Obtain the best medical information that you can – While you
can’t ask employees to disclose their medical condition, you can
ask them to tell you how their illness or injury will impact their
ability to do their job. To contact their treating doctor you will
need to get their consent. If you consider it necessary, you can
request that they see a doctor of your choosing (at your expense).
3. You can insist on reasonable co-operation – Employers can
expect that employees will assist them in addressing the situation.
4. Match their capacity with the job requirements – Employers are
obliged to make reasonable adjustments to the workplace to match
ill or injured employees’ capacity to perform their role.
5. Be patient – It’s important not to rush to conclusions about ill or
injured employees. Give them an opportunity to respond to your
enquiries and support them in the process. If there is an Employee
Assistance Program, this should also be offered.
17/11/2015 5:24 pm
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