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Can you sack an employee for not taking sick leave?

By Kristin Ramsey03 Aug 2017

As we move into the final stages of winter, the cacophony of coughs and dripping of noses is intensifying in many Australian workplaces. There is something curiously contradictory about the Australian psyche which results in many employees attending for work when they are ill and yet taking “sickies” on other days when they are in fact well.

Interestingly the Supreme Court of Poland has upheld an employer’s decision to sack an employee for not taking sick leave. Unfortunately the case is in polish so I don’t have a lot of information to work with (other than the short note provided by Polish employment law firm Sobczyk I Wspó?pracownicy) but it looks like the employee had gone to see their doctor as a result of an illness, been provided with a “sick note” but then continued to attend for work. As a result, they were dismissed. The Supreme Court found that by attending for work (contrary to the “sick note”) the employee had breached their obligations to act in the best interests of their workplace – which justified their dismissal.

Whilst employee advocates may argue that in Australia an employee is more likely to be dismissed for taking sick leave (rather than not taking it), the case raises the interesting question of whether an employee in Australia could be dismissed for coming to work when they are sick.

The short answer is yes, an employee in Australia could have their employment terminated if they attend for work whilst sick.

Under work health and safety laws employees have a duty to take reasonable care (a) for their own safety, and (b) that their acts or omissions do not adversely affect the health and safety of other persons. In addition, employees have a common law duty to act in the best interests of their employer. By coming to work when ill (and therefore potentially exposing not only themselves to risk but also their colleagues) an employee could be acting contrary to these obligations, which could (I stress “could”) provide grounds for dismissal.

Of course, it will all depend on the circumstances, the degree of the illness (or injury) and the risks that are likely to flow from the employee’s attendance at work. Australian laws would also require that the employee be directed not to attend work and warned of the potential for termination of their employment if they fail to comply and/or be given an opportunity to put forward their view as to why it is safe for them to continue working before termination could be considered.

Now I am not suggesting that employers should go around terminating employees who attend work with a runny nose, but what business’ should do is encourage employees not to attend for work when they are ill. Employers can even go as far as directing employees not to attend for work (or to leave the workplace) when they are sufficiently ill to pose a risk to their own health or safety, or the health or safety of others around them. Like all situations involving ill or injured employees, care needs to be taken, some common sense applied and in difficult situations – legal advice sought. 

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