Sick leave benefits are a common issue causing confusion for employers. Most employers want to support employees during periods of ill health, while minimising the impact on the business. It is important that sick leave arrangements are managed in accordance with the law, otherwise the employee will have grounds for complaint. A recent case before the Fair Work Commission highlights the importance of employers understanding their legal obligations when it comes to sick leave.


The employee of a large beverage manufacturer was absent from work for approximately three weeks as a result of being bitten by a venomous spider. The employee attended work on 5 November 2014 and allegedly advised her Team Leader that she had been bitten by a whitetail spider the previous day and that she would not have come to work but for the fact that she was out of sick leave. It is claimed that, the next day, the employee’s manager told her to go to the doctor and not “play around” with what might have been a whitetail spider bite. The employee’s doctor subsequently certified her as unfit for work.

On the 7 November 2014, the employee advised her Manager that her doctor had told her that she would need a minimum of two weeks off and that she would need to visit him on a daily basis to have her bandages changed. The employee subsequently applied for extended sick leave under the Enterprise Agreement where employees who had exhausted all personal leave entitlements can gain access to extended sick leave, if they suffered from a “prolonged and serious medical condition” which lasted for an “extended period of time”.

The company refused the application and said that the employee failed to satisfy the three tests in the agreement and did not qualify for the leave. The employer advised that based on the medical evidence provided, the employee’s medical condition was not prolonged, was not considered serious and there was no recommendation that she be absent from the workplace for an extended period. The employer noted that extended sick leave had only previously been approved in limited circumstances. These included including employees suffering from terminal cancer, a broken neck, unfitness for work due to non-work weight-related issues and continuing non-work-related psychological issues.

The employee argued that in refusing her application, the company breached the agreement. She claimed the agreement should be read more broadly and that her absence from the workplace was considerably longer than the average period of sick leave.

The Deputy President of the Fair Work Commission rejected the employee’s application for extended leave, finding instead that her case didn’t meet the threshold requirements set out in the agreement because she was not suffering from a serious medical condition that was expected to last for an extended period. The Commission also noted that nowhere in the medical evidence was the employee’s condition recorded as serious and the hospital discharge summary indicated that the patient was “systemically well” and “looks well, limping slightly”.

While the employee’s request for additional sick leave was not granted, the above case highlights the importance of employers having a formal sick leave policy and procedure to deal with employees who are requesting additional paid sick leave. The fact that the employer had three tests to rely on when assessing the applicant’s request for additional paid sick leave strengthened the employer’s position.


Mr John Boardman, iHR Australia’s Director of Workplace Relations said “this case serves as a warning to the parties of any Enterprise Agreement (EA) that they need to understand what it is they are inserting into the agreement and how it will be applied.” Mr Boardman said “the tragedy of this case is that because of a misunderstanding of the EA provision on one hand the company had a costly dispute; and from the employee’s perspective a feeling that they have been cheated out of what they believed was a genuine entitlement.” In these circumstances Mr Boardman said “there are no winners.”

iHR Australia believes that prevention is the best cure. When drawing up employment contracts or drafting EAs it is good practice to include provisions that not only deal with leave entitlements but how they are applied. These provisions need to be reflected in HR policies and procedures and site agreements. iHR Australia frequently reviews existing contracts and agreements for organisation to ensure sick leave policy adheres to the relevant legislation, is consistent and clear in its intent. iHR Australia’s employer advisory service can provide advice on leave provisions including sick leave and can help you ensure that you meet your legal obligations.

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