Sasha Borissenko: Your sick leave rights and the dangers of throwing a sickie


Vulnerable employees will be shouting “huzzah” this week as they can freely take 10 days’ sick leave – up from five – thanks to the Holidays (Increasing Sick Leave) Amendment Act 2021.

Employees can still accumulate up to 20 days of unused sick leave, meaning employees can henceforth carry over up to 10 days of unused sick leave each year as opposed to 15. Before July 24, employees were legally entitled to a minimum of five days’ sick leave per year after working for six months. Having to wait six months still exists, but this is likely to change in 2022 when the Government implements the recommendations of the Holidays Act Taskforce.

If your employer already agreed to 10 or more sick days of sick leave per year, you will see no change. Unlimited sick leave, the option to accrue all unused sick leave, or heaven forbid, being able to cash in unused sick leave once you leave a workplace remains a thing of mystery.

What are your rights?

In order to exercise your rights you, your partner, or a dependant has to be sick or injured. Sickness or injury isn’t defined, other than the fact you may need to produce proof of sickness or injury if you’ve taken time off for a period of three or more consecutive calendar days.

You may need to provide proof (a medical certificate) within three days if your employer has told you as early as possible that proof is required, and your employer agrees to pay for “reasonable expenses in obtaining the proof”. Essentially, this means your employer may only demand you bring in a medical certificate before three days if they agree to pay for it.

All employees (including part-time and casual employees) are entitled to sick leave if you’ve worked for the same employer continuously for six months, or if you’ve worked for the employer for six months for an average of 10 hours per work, and at least one hour in every week or 40 hours in every month.

If you’re sick, you need to tell your employer as soon as possible. If you run out of sick leave you can ask for sick leave in advance, take unpaid leave, or use annual leave.

Case law of interest

A 2013 case in the Employment Court involved an employee applying for five days off to attend a sporting competition. The employee had no annual leave left, and the employer granted them three days off.

The employee came to work for one of the days he wasn’t granted leave and left shortly after saying he had injured his calf muscle. He said he had gone to the doctor, who advised him to take two days off.

He was seen by a colleague at the competition. There was also evidence by way of a Facebook photograph showing the employee at the competition. The employer also obtained a letter from an event organiser that the employee was at the competition. Meanwhile the employee was uncontactable.

The employee obtained a medical certificate, but it was after-the-fact. He also provided somewhat conflicting or different explanations for his absence when going through a disciplinary process. The man was dismissed on the grounds of serious misconduct citing that the leave wasn’t genuine.

The employee said he wasn’t pulling a sickie, instead saying he was recuperating elsewhere. Side note, one has to ask, what’s to say you have an injury but you can’t also attend a competition? You could suppose the two could be viewed as mutually exclusive, but the court rejected this argument. The court said the man’s activities were reasonably held not to be consistent with recuperation and genuine illness.

The Employment Court found that the employee had misled, deceived and refused or failed to cooperate with the employer to the extent that the necessary trust and confidence expected of the parties had been lost and a dismissal was found to be justified.

What does this tell you? Irrespective of obtaining a medical certificate the investigation process may bite you in the butt. I’d be interested to see a case where there’s evidence of instagram posts after 5pm on a Friday. Arguably you could have felt worse for wear in the morning but you brightened up enough to engage in debaucherous activity after “work”.

Nonetheless, if you are going to throw a sickie, be sure to avoid going on social media, and stay clear of seeing any colleagues. To quote Real Housewives of New York’s Dorinda Medley: “Say it, forget it, write it [- or in this case post it -] regret it”.

Sasha Borissenko is a freelance journalist who has reported extensively on the law industry.

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