Managing personal leave can be complex, especially when it comes to evidence requirements, extended leave absences and balancing entitlements. This article addresses common queries that are received, as well as providing further insight into what personal/carer’s leave is and how the entitlement differs between state and national system employers. Please note that the article should be used as a guide, and if assistance is required for a particular circumstance, contact the Employee Relations Helpline on 08 9365 7660 or email advice@cciwa.com.
The Fair Work Act 2009 Cth (FW Act) states employees, other than casual employees, are entitled to accrue 10 days of paid personal/carer’s leave per year. Personal/carer’s leave accrues progressively during a year of service based on the ordinary hours of work and is paid at the employee’s base rate of pay.
An employee can access personal/carer’s leave in the following circumstances if:
The FW Act defines ‘immediate family’ as:
All employees, including casuals, can also access two days of unpaid carer’s leave per occasion to provide care or support to a member of the employee’s immediate family or household who is experiencing a personal illness, injury or an unexpected emergency. An employee is only entitled to unpaid personal/carer’s leave when they have exhausted their accrued paid personal/carer leave.
The Minimum Conditions of Employment Act 1993 WA (MCE Act) states an employee, other than a casual employee, is entitled to two weeks paid personal leave (up to a maximum of 76 hours per year) for personal circumstances. Personal circumstances are defined in the MCE Act as:
A member of the employee’s family is:
A member of the employee’s household includes any other person who, at or immediately before the relevant time for assessing the employee’s eligibility to take leave, lived with the employee as a member of the employee’s household.
An employee’s entitlement to personal leave accrues year to year on a weekly basis and is cumulative.
An employee is able to access up to two days of unpaid personal leave for each permissible occasion for a personal circumstance where a member of the employee’s family or household is affected by an illness, injury or an unexpected emergency. An employee can only access this entitlement if they cannot take paid personal leave.
An employee who needs to access personal leave is required to comply with notice and evidence requirements. An employer may require an employee to produce evidence that would satisfy a reasonable person, examples of which may include a medical certificate from a registered health practitioner, a statutory declaration or other evidence that would satisfy a reasonable person.
If an employee does not comply with notice or evidence requirements, disciplinary action may be taken.
If the employer requires evidence for the employee’s absence, they should request it at the time they receive the notification. This will give the employee the chance to obtain the evidence, which may include visiting a doctor. It is also recommended that businesses have a leave policy, which outlines when evidence is required, such as leave surrounding a public holiday or a weekend.
If an employer believes an employee has provided a fraudulent or invalid medical certificate, the employer can contact the practice that issued the medical certificate. The employer can ask the practice to confirm that the medical certificate was issued by the practice but no further clarification about the employee’s condition should be sought.
Medical certificates issued via online platforms can still be seen as evidence that would satisfy a reasonable person. Many online medical certificates are issued by medical practitioners. A business should make sure that a medical certificate has a provider number from the issuing healthcare professional.
There is no cap on how much personal leave an employee can take. An employee can utilise their paid personal leave they have accrued with no restrictions on the duration. Once an employee has exhausted their balance of paid personal leave, the leave will become a period of unpaid personal leave.
If an employee exhausts their paid personal leave entitlement but are still unfit to return to work, the leave will become unpaid personal leave. Sometimes, an employee will have annual leave accrued and may request to use their annual leave entitlement. An employee does not have an entitlement to use annual leave when personal leave has been exhausted, however, the employee can still make the request. It is at the business’ discretion as to whether the employee can use their annual leave in this instance, providing the employer has not unreasonably refused such request. If a business has a leave policy, this should also be reviewed in conjunction with the request.
Disciplining an employee for using paid or unpaid personal leave can carry risks such as general protections risks or unfair dismissal risks. Providing an employee is complying with notice and evidence requirements, an employer should not discipline an employee from using this entitlement.
If an employee has been on personal leave for an extended period of time, assessments may be required to ascertain an employee’s ability to perform the role going forward.
How CCIWA can help
To find out more information, or for tailored advice, call the Employee Relations Helpline on 08 9365 7660 or email advice@cciwa.com.
CCIWA, Business Law WA and REEFWA has taken all reasonable care in preparing this document. The contents of this document do not constitute legal advice and should not be relied upon as such. Specific advice for your situation should be sought from CCIWA, Business Law WA or a professional adviser before any action is taken. Neither REEFWA, CCIWA nor Business Law WA accept responsibility for any claim that arises from any person acting or refraining from acting on the information contained in this document.
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