Q&A: Medical issues at work for WA employees

If you are a casual employee, you are not entitled to paid sick leave. However, you are entitled to unpaid time off when you are sick, and you shouldn’t be punished if you miss a shift due to illness or injury(see further below).

If you are a full-time permanent employee, you have 10 day of paid personal leave per year. You can use this leave when you are unfit for work due to an illness or injury (sick leave), or when you are required to care for a family or household member (carer’s leave). For more information on using your personal leave as carer’s leave, see ***FS on mincons***.

If you are part-time employee, you are entitled to personal leave on a pro-rata (proportional) basis. For example, if you work 3 days per week, you would have 6 days of personal leave per year.

You can take paid sick leave if you are unfit for work because of an illness or injury.

Can paid sick leave be taken for stress?

If you are so stressed that you become unfit for work, then you may use paid sick leave for time off. Your employer has the right to request reasonable evidence of your illness, such as a medical certificate. So as a general rule, you should consider whether or not a doctor would give you a medical certificate or not. If it’s an ordinary, every day level of stress, then consider whether or not it’s appropriate for sick leave. If you have got, or think that you can get a medical certificate for the issue if asked, then it is probably appropriate for sick leave.

Can paid sick leave be taken for appointments or check ups?

Under minimum condition laws, you would need to be unfit for work to use the sick leave for an appointment or checkup. So for regular, planned appointments the answer is normally no. However, employers are free to implement policies or arrangements that are more generous than the minimum. Your workplace policy may allow you to use sick leave for appointments, and you are free to ask your employer to use sick leave in this way. Just keep in mind that your employer may not be obligated to grant your request.

You are required to tell your employer as soon as is “practicable” and to tell them how long you will be off work, or if you don’t know – how long you expect to be off work.

This normally means that you should tell your employer you won’t be coming in as soon as you realise you are not fit for work.

In some circumstances it might not be reasonable for you to tell your employer straight away. For example, if you are in an emergency like a serious car accident, or if you are extremely unwell, you may need to deal with urgent medical concerns first.

You are required to provide evidence of your illness or injury when your employer requests it or at the time required under a workplace policy. There may be additional rules in awards or agreements that stipulate when you need to provide evidence for your absence and what type of evidence is required (e.g medical certificate, statutory declaration).

For most workplaces, you aren’t required to provide a medical certificate for brief absences. However, you need to check your particular workplace’s conditions of employment. If you aren’t sure, ask your employer what their sick leave policy is.

Generally, it is enough to say that you are unfit for work and requesting to take sick leave. However, your employer is allowed to ask for medical evidence, which may reveal the type of sickness/injury you are experiencing.

If you don’t want this information revealed, you can discuss this issue with your doctor. Remember that it is your decision as to how much of your personal information is revealed, and you can ask the doctor to keep information confidential, and restrict the certificate or report to your capacity to do the job.

Your employer does not have the right to communicate directly with your doctor without your agreement. Your employer does not have the right to your entire medical history, or in fact, any irrelevant information.

In some circumstances, particularly extended absences, an employer may be justified in asking for more specific information, so that they can effectively plan your work and ensure you are safe in the workplace. If your employer is asking for more specific information, you may wish to politely ask how the additional information is relevant, to help ensure that the doctor doesn’t provide unnecessary private information.

Personal leave

Personal leave (otherwise known as sick leave) can be used if you are unfit to attend work due to an illness/injury. All employees (except casual employees) are entitled to an amount of personal leave days per year – depending on how many days they work.

If you are a full-time employee you are entitled to at least 10 personal leave days a year. If you are a part-time employee you are entitled to a pro rata amount (e.g someone who works 4 days a week is entitled to at least 8 days of personal leave per year).

Protection from certain negative treatment

If you fall under the national system of employment laws, there is a protection against negative treatment (e.g demotion, reduced shifts) under a general protections claim. If the negative action has been taken against you because you took or propose to take paid sick leave – then this may be unlawful. For more information see Claim Guide: General protections (non-dismissal) for national system employees

Protection from discrimination

If you have been treated badly because of your sickness/injury then you may be able to make a discrimination complaint. An employer may be able to defend a discrimination complaint if they are able to show that you were unable to fulfil the inherent requirements of the role. In other words if your injury/sickness prevented you from doing your job for the foreseeable future – your employer may be able to defend the complaint. For more information on discrimination see Q&A: Workplace discrimination for WA workers

Protection from dismissal

If you are dismissed because you have been temporarily absent (no longer than 3 months) because of an illness or injury then you may have legal claims available to you. National system employees may be able to make a general protections claim. For more information see Claim Guide: General protections (dismissal) for national system employees

. And state system employees may be able to make an unlawful termination claim. For more information see Claim Guide: Unlawful termination for state system employees

Your employer is required to make reasonable adjustment for your disability. Disability has a broad definition and includes temporary illness/injury as well as mental health issues. What is reasonable can depend on different factors, including (but not limited to):

• Employer size and wealth;
• Difficulty and complexity of the adjustment; and
• Cost of the adjustment.

If the employer has not made reasonable adjustments you may be able to make a complaint to the Australian Human Rights Commission (AHRC). For more information see: Claim Guide: Australian Human Rights Commission for WA employees

You can be off work for as long as you need to recover and be considered ‘fit for work’. However, there may be less legal options available if you have been off work for more than 3 months.

This is because the protection from being dismissed because of a temporary absence only applies when you have been off work for 3 months or less (in a 12 month period).  If your absence exceeds 3 months, you may still be able to make other dismissal claims and you may be able to make a discrimination claim. See Q&A: Dismissal for WA employees. ****AND dismissal pub

Keep in mind that you are unlikely to be successful in an unfair dismissal claim or a discrimination claim if your employer can demonstrate that you were unable to perform your job, and unlikely to return to work. If you are off work for 3 months or longer, this may be seen as an indication that you are not capable of returning.

So if you are on extended leave, it is generally good to keep in touch with the employer and let them know if there is an expected date you can return to work. Ideally, you will be working with your employer and your doctor on a return to work plan. If you have a plan for returning to work and it is supported by your doctor, this makes it more likely that a decision to dismiss you will be considered  unfair or discriminatory.

Your employer cannot force you to return to work if you are still unfit to do so. You should provide your employer with medical evidence that you are not ready to return to work.

If you are absent for so long that it appears you are unable to do your job, and unable to return to work, then you may be at risk of dismissal. So If you are communicating that you are unfit for work, its best if you can provide a medical opinion on when you will be able to return to work.

You can also ask your doctor to consider whether you can return on light duties, and ask your employer to help you with a return to work plan. An employer is required to make reasonable adjustments for your injury/illness. If the employer does not accommodate for your injury/illness where it was reasonable to do so, you may be able to make a discrimination complaint to the AHRC.

See Claim Guide: Australian Human Rights Commission for WA employees.

You may be able to make a workers compensation claim. Circle Green cannot advise on workers compensation. However, you may want to contact WorkCover WA.

There are certain protections in place for people who make a workers compensation claim.

For example, if you fall under the national system you may be able to make a general protections claim if you have been dismissed or experience another type of negative action because you make a workers compensation claim.

If you fall under the state system you may be able to make a protection of employee rights claim if you are dismissed or experience another type of negative action because you made a workers compensation claim. State system employees may also be able to make an unlawful termination claim if they have been dismissed for making a workers compensation claim.

An employer can direct you to do a fitness for work assessment as long as it is lawful and reasonable in the circumstances.

If your employer is:

• unsure as to the extent of your illness or injury;
• believes you may be at risk of causing harm to yourself or other; or
• is concerned about your ability to undertake the inherent requirements of your role;

then it may be reasonable to ask you to see an independent medical specialist for a fitness for work review.

What is reasonable will depend on the circumstances. Your employer has a general duty to keep you safe, and this includes assessing whether or not you can safely perform your role. However, if there is no evidence to suggest that you can’t perform your role, or that you are a safety risk, or if you have already provided a medical certificate addressing the issues, then it may be unreasonable to require you to go to an assessment.

Failure to do attend a lawful and reasonably directed  fitness for work assessment may be a form of misconduct. An employer may address misconduct through disciplinary processes, up to and including dismissal.

The general rule is that employers should only be asking for information that is relevant to the job you are doing (or will be doing, if you are applying for a job).

If an employer does not need the information to assess your capacity to do the job, and is still using it to exclude people from the job, this may be in breach of the law.

It is discriminatory to exclude someone from a job because of a past injury, unless the injury means it’s not possible for the person to do the job properly or safely.

It can also be against the law for an employer to exclude someone from a job because they have made a claim in the past, including a workers’ compensation claim.

For more information on these issues, see Q&A: Workplace discrimination for WA workers and Q&A: Protected complaints and actions for WA workers

• Claim Guide: General protections (non-dismissal) for national system employees
• Q&A: Workplace discrimination for WA workers
• Claim Guide: General protections (dismissal) for national system employees
• Claim Guide: Unlawful termination for state system employees
• Claim Guide: Australian Human Rights Commission for WA employees

Circle Green Community Legal

WA employees can request free and confidential legal assistance with employment and workplace discrimination issues from Circle Green Community Legal.

• Complete an online request: org.au/get-help
• Telephone enquiries: 08 6148 3636 (Please note that we do not provide on demand legal advice)

For further information on our Workplace law services, please visit: circlegreen.org.au/workplace

Fair Work Commission

• Web: fwc.gov.au

Western Australian Industrial Relations Commission

• Web: https://www.wairc.wa.gov.au/

WorkCover

• Web: https://www.workcover.wa.gov.au/

WorkSafe

• Web: https://www.commerce.wa.gov.au/worksafe/