Can an employee use carer’s leave to look after their wife/partner who has given birth to a child? What if it were an emergency caesarean?

Ordinarily the employee would be required to take this leave as concurrent parental leave. However, if in the case of an emergency caesarean this would fall within the definition of ‘an unexpected emergency’ affecting a family member and would probably entitle the employee to paid carer’s leave.

Can I impose rules about the way that employees give notice of sick leave or carer’s leave absences, and discipline employees if they do not observe these rules?

You can insist that an employee notify you as soon as possible about taking leave and the expected leave period. However, you cannot insist that this notice be given by a particular time before work is due to start.

If an employee does not give notice as soon as practicable or in the prescribed way, you can discipline the employee.  However, you will need to be prepared to defend any claim that the discipline is because of the fact the employee has taken sick or carer’s leave, as opposed to the way it has been taken (which claim might be raised as a contravention of the FW Act general protections provisions).

We have an employee who is frequently absent from work. However, They provide a medical certificate each time. Is it reasonable to request they see a doctor of our choosing to assess their capacity to work?

Generally speaking, as an employer you only need to know if an employee is ill or injured if it is affecting the ability to perform the requirements of the job, or if there is a need to make an adjustment in the workplace to meet your WHS responsibilities.

This can be a delicate scenario, particularly when the employee has not volunteered information and might fear discrimination in the future. If you feel that the employee’s ability to perform job tasks is being affected, you are entitled to make enquiries. We suggest the following steps to address ill or injured employees:

1. 1. Be proactive – Have an informal chat about how the employee is coping with the job and that you have noticed they have been absent from work on a regular basis. This conversation should ideally focus on providing the employee with support, and emphasise that this is not a disciplinary or performance management meeting.
2. 2. Obtain the best medical information that you can – While you can’t ask employees to disclose their medical condition, you can ask them to tell you how their illness or injury will impact their ability to do their job. To contact their treating doctor you will need to get their consent. If you consider it necessary, you can request that they see a doctor of your choosing (at your expense).
3. 3. You can insist on reasonable co-operation – Employers can expect that employees will assist them in addressing the situation.
4. 4. Match their capacity with the job requirements – Employers are obliged to make reasonable adjustments to the workplace to match ill or injured employees’ capacity to perform their role.
5. 5. Be patient – It’s important not to rush to conclusions about ill or injured employees. Give them an opportunity to respond to your enquiries and support them in the process. If there is an Employee Assistance Program, this should also be offered.

To read past AHRI:ASSIST columns click here or visit the AHRI:ASSIST page. 

This article is an edited version. The full article was first published in the December/January 2016 issue of HRMonthly magazine as ‘AHRI:ASSIST’. AHRI members receive HRMonthly 11 times per year as part of their membership. Find out more about AHRI membership here.