But can you fire someone for habitually calling out of work? In short, you can terminate an employee in certain circumstances. A dismissal involving absence from work however, can be risky and it is best to seek professional advice on such cases.
Generally, you cannot discipline or dismiss an employee for taking sick leave because they are exercising their lawful right to take paid sick leave.
Abuse of sick leave refers to employees who, over a period of time, have “gamed” the employer's attendance policy. The exploitation of sick leave policy may range from employees not calling in or not showing up for their shifts, exhausting their available leave every month, and requesting extra time off when well.
As such, there is no set answer to the question “how many sick days before disciplinary action?”, as it can vary on a case-to-case basis. For example, employees may base this decision upon the national average for sick days, which for 2022 was 4.9 sick days used per worker.
If an employee is repeatedly absent or has a long-term condition that means they are no longer able to do their job, or do their role to the required standard, you may be considering issuing a written warning or even bringing their employment to an end.
If you are sick you should call in sick as many days as you need to. Most places require a doctor's note after three days, though.
When an employee is away for longer than 3 months. An employee is no longer protected from being dismissed because of their absence (even if they provide evidence) if: their absence is more than 3 consecutive months or more than 3 months in total over the last 12 months, and. they've used all of their paid sick leave.
Most companies will tolerate 1 “sick day” per month, but if you establish a pattern, such as always calling in sick on a Monday or Friday, you are going to be questioned, possibly warned, possibly fired.
Under the Fair Work Regulations 2009, regulation 3.01 states that if an employee is away from work on unpaid leave for more than 13 weeks in a 52-week period, the employer has a right to terminate the employee. The terminated employee will not be protected by the unfair dismissal laws or the general protection laws.
Brief Overview of Calling Out of Work
A sick day starts with alerting your boss or human resources department that you need to take the day off. Before you call in sick, consider reviewing your employer's sick leave policy by consulting your employee handbook or asking human resources.
For example, you can prepare an alibi, call your boss (or send a text message so you don't have to try to sound sick), and follow through when you're back at work by pretending to be recovering. Thankfully, at least some of this advice is prefaced by the admonition that calling in sick when you're not is unethical.
Wilful absence from work can constitute a breach of the contract of employment and may justify termination of the contract summarily. Even absence for reasons beyond the employee's control may constitute a ground for termination when the period of absence becomes unreasonable.
Generally, an employer must not terminate an employee's employment unless they have given the employee written notice of the last day of employment. An employer can either let the employee work through their notice period, or pay it out to them (also known as pay in lieu of notice).
Calling in sick for mental health reasons is perfectly valid. A sick day can give you time to practice self-care, allowing you to return to your day-to-day life feeling calmer and refreshed. Not all employers may see it this way as stigma against mental illness is still rife.
Casual workers are entitled to take unpaid sick leave. Do I need a medical certificate? Many workplace Agreements provide for two single-day absences annually without the need for a medical certificate. After this, employees can be asked to provide either a medical certificate or a Statutory Declaration.
It's important to know: The yearly entitlement of paid sick or carer's leave is based on an employee's ordinary hours of work. It is 10 days for full-time employees, and pro-rata for part-time employees. This can be calculated as 1/26 of an employee's ordinary hours of work in a year. .
According to Fair Work Australia: “An employee can take paid sick leave when they can't work because of a personal illness or injury. This can include stress and pregnancy-related illnesses.” In other words, if you have a stress-related illness, your employer should allow you to take paid sick leave.
If you have an unexpected illness and have to give short notice that you won't be in, be sure to text your boss immediately and do your best to provide a solution to your absence. If you are a salaried employee with no major deadlines, this shouldn't be too much of an issue.
Anytime you need to call out you should give your supervisor as much notice as possible before your shift begins, when possible you should contact your employer at least 2 hours before your shift so that they can plan and prepare for your absence.
If you can tell your boss that you will be taking a sick day the night before, or even as you are leaving the office, then do so. Otherwise, call, email or text first thing in the morning. This will allow them sufficient time to reassign your workload or arrange cover.
So, can your boss force you to work when you're sick? No, of course they can't! In Australia, all employees have the right to sick leave. In some cases, you might choose to work from home.