Employee Disputes Series - Part 4B: Handling Ill or Injured Employees – Non Workplace Injuries

Posted by Malcolm Campbell on 13 February 2019
Employee Disputes Series - Part 4B: Handling Ill or Injured Employees – Non Workplace Injuries

Following on from our previous post on workplace injuries, we’re now going to look at understanding Non-Workplace injuries and how best to handle claims.

Non-Workplace Injury

If the injury/illness causing the employee to be unfit for duty is not work related and not covered by Workers Compensation legislation then the same statutory framework does not apply to those employees. National Systems employees will be cover by effectively the standard provisions of the Fair Work Act 2009 (Cth) (the Act) will regulate the situation.

Section 96 of the Fair Work Act entitles full-time employees to accrue 10 days of personal/carer's leave per year of service, which accrues progressively and does not expire.

While many employees will approach the use of such leave in a fair and reasonable manner (and some do not take the leave even though they should) some employees with inevitably misuse  the leave. Employers often bemoan the habit of some employees taking the good old “sickie” especially leading up to or after weekends or public holidays. Commonly employers feel powerless to do anything about what they see as a blatant flaunting of sick leave.

Employers are not entirely powerless to manage the situation in a more proactive manner.  Section 107 of the Act requires the employee to give their employer notice of taking leave such as sick leave (now referred to as personal/carers leave). Once notice is given of the need to take that type of leave, the employee must, if required by the employer, provide the employer with evidence that would satisfy a reasonable person that the leave has been taken because the employee is not fit for work due to a personal illness or injury affecting the employee, or to provide care for a member of their immediate family because of an illness, injury or unexpected emergency affecting the family member.

The evidence of the need to take personal/carers (sick) leave most commonly comes in the form of a medical certificate from a General Practitioner.  Quite often this medical certificate will provide non-descript and effectively meaningless explanations for the employee’s absence such as “unwell”, “unfit to work” or “medical condition”.  Of course none of these descriptions adequately explain that the person is not fit for work due to an illness or personal injury. However employers will very rarely question an employee who presents such a certificate as to the specific illness or personal injury that allegedly prevented them from attending work and to make the claim for paid sick leave. 

While there is often great conjecture as to the validity or veracity of many medical certificates, the starting point for medical certificates is that they must be accepted as accurate and legitimate unless there is sound evidence (not suspicion) to the contrary. However, if there are unusual or exceptional circumstances the certificate may be challenged or further information sought (e.g. if the certificates is lacking in detail or does not actually diagnose a medical condition).

An employer is well within their right to ask an employee to have their General Practitioner provide a more detailed medical certificate or written explanation as to the condition that the employee was suffering from at the time they originally presented to them to obtain the medical certificate.  Unless the employee can provide evidence to the employer that reasonably satisfies the employer of the need to take the leave, then the employee is not to take the leave pursuant to Section 107 of the Act.

Next up in our series is Part 4C – Handling Ill or Injured Employees – Independent Medical Reports.

You can read earlier installations in the Employment Disputes Series here.

If you have concerns about handling non-workplace injury leave, need help creating new policies and procedures or if you need advice or assistance regarding an Employment Law issue, please contact us and we can provide you with advice tailored to your specific situation.