Setting Yourself Up For Success: Processes to Manage Personal or Carer’s Leave

Managing personal leave or carer’s leave can be one of the more challenging aspects of workforce management for employers. Leaving aside the cynical stereotypes, in most cases, employees will access this leave only when genuinely needed. 

However, some employees can use these entitlements gratuitously and to the detriment of their colleagues and their employer. While employees are entitled to take time off when they are ill or need to care for a family member, excessive or poorly managed leave can lead to disruptions in business operations and ultimately be detrimental to the employee themselves.

For employers, balancing the legal requirements with the need for business continuity is a delicate task. Issues such as inconsistent notice, lack of appropriate evidence, and frequent absences can put a strain on teams and affect productivity. Moreover, improper handling of personal leave requests can also lead to legal complications, making it crucial for employers to have clear, fair, and consistent processes in place to manage these requests effectively.

 

Recap of Personal or Carer’s Leave

A permanent employee can access personal / carer’s leave (PCL) where they are:

• not fit for work because of a personal illness or injury; or
• required to provide care or support to an immediate family member or a member of the employee’s household because:
  • that person has a personal illness or injury; or
  • an unexpected emergency is affecting that member.

(collectively, a “permitted reason”)

 

Legally, for an employee to access PCL, an employee must:

• give their employer notice of the leave as soon as reasonably practicable and disclose the duration, or expected duration, of the leave; and
• where required by their employer, provide evidence that would satisfy a reasonable person that the PCL is being taken for a permitted reason.

 

If an employee fails to comply with these requirements, they are not entitled to access their accrued PCL. Of course, an employer and employee can otherwise agree for an employee to access PCL despite these provisions not being met. 

 

Processes to Manage PCL

PCL is an employee entitlement under the Fair Work Act 2009 (the Act) and there can be serious consequences for an employer if it takes (or even is perceived to take) adverse action against an employee for exercising, or attempting to exercise, their right to access PCL.

To enable an employer to manage PCL effectively, efficiently and (most importantly) lawfully, it is important for employers to ensure that they have clear written processes, and their senior staff are trained to understand how those processes work. 

These processes may include the following.

Written Policy

Firstly, a policy that deals with attendance, absenteeism and requesting access to PCL in a lawful manner. Key considerations for a policy dealing with PCL include:

• Notice: Outline how notice is to be provided and set the organisation’s expectations as to when notice should be provided. It is necessary to point out that the Act requires notice to be provided as soon as reasonably practicable, which may be after the commencement of work for an employee on that day. A policy cannot impose requirements that are stricter than this.
  • That said, a well drafted policy can supplement these requirements to suit the needs of the business. For example, a comprehensive policy will detail who the notice is to be provided to, and what form the notice is to take (it may be in stages such as a text message at first so the employer is at least aware, followed by an email explanation and medical certificate).

 

• Evidence: Identify what evidence is required and when additional evidence may be requested. It is commonly accepted that sufficient evidence will be in the form of a medical certificate from a medical practitioner or statutory declaration. However, in certain circumstances, more comprehensive evidence may be required. For example, where PCL is taken for a prolonged period of time or where absences are consistent and recurring, a medical report may be reasonable to ensure that the business can prepare for the absence.

 

• Periods of Concern: Some organisations will identify when evidence will definitely be requested. Typically, these are periods where the taking of PCL may seem overly convenient and as such potentially unrelated to a health or caring issue. For example, it is fairly common for employers to require evidence for absences on Mondays, Fridays and prior to and post Public Holidays. It is also common for employers to request leave where absences extend for longer than a defined period (e.g., 2 or 3 days).

 

Why are these provisions in a policy important?

A policy that deals with PCL provides three primary benefits:

1. Senior managers or supervisors who have delegated responsibility to manage PCL are provided with a clearly documented framework as to how the organisation expects PCL to be managed. 

2. It sets the organisation’s expectations for employees as to how PCL is to be taken, and it strengthens an employer’s ability to issue lawful and reasonable directions where there is non-compliance with provisions that supplement the Act.

3. It creates a “point-in-time” document that is indicative of how the organisation responds to, and manages, PCL requests. Provided that policies are followed consistently, these documents can be critical to explaining the reason or reasons that a decision maker in the business has taken certain actions in response to a request for PCL. This can be crucial in general protection claims relating to the use of PCL.

 

Medical Examinations in Employment Contracts

In some cases, medical certificates or statutory declarations may not be sufficient to satisfy the employer of the reasons an employee is seeking to use their accrued PCL. To address these issues, it is prudent for an employment contract to contain an express contractual term that:

• provides an employer with the right to direct an employee to undergo medical examinations; and 
• requires the employee to give all necessary consent and sign any authorities required for the employer to access the report prepared by the treating practitioner following the examination.

The right to direct an employee to undergo medical examinations should be broad. However, if an organisation wants to prescribe certain scenarios when an employee may be directed to attend medical examinations, the listed scenarios should be non-exhaustive, and it should be clear that the scenarios are non-exhaustive.

That said, it is important to bear in mind these contractual provisions should only be relied upon circumstances where a reasonable person would not be satisfied with alternate evidence (such as a medical certificate or statutory declaration). For example, where PCL extends for a prolonged period of time and there is uncertainty as to capacity of the employee and when the employee will return.

 

Why is a medical examination clause important?

There are three primary benefits obtained from a medical examination clause: 

1. While it is accepted that employment contracts have an implied medical examination term, the lawfulness of an employer relying on such terms is highly fact specific. Express contractual provisions avoid the necessity of having to argue about the existence of such a clause and permit the employer and employee to agree, at the outset of the relationship, how and when medical examinations can be directed. 

2. Where PCL (or even unpaid leave due to illness or injury) is prolonged, there is a toll on the business because of the uncertainty of when the employee will return. This generally results in an inability to replace the employee, or make alterations to existing roles, on a temporary basis. Medical reports obtained via medical examinations allow the employer to understand the prognosis of an injury / illness and plan for when an employee may return.

3. A medical report obtained from a medical examination can assist an organisation in complying with their WHS obligations if the employee eventually returns to work. Understanding what may exacerbate an employee’s injury or illness is critical for employer’s permitting an employee’s return to work.

 

By implementing clear policies, requiring appropriate documentation, and establishing consistent processes, employers can mitigate the risks of excessive or poorly managed leave. A proactive approach not only supports workplace productivity but also ensures compliance and reduces potential legal complications.

 

If you require any further advice in respect of this matter, please feel free to get in touch with one of the team at Australian Business Lawyers & Advisors.