Sick leave or annual leave?

Alex writes: “I needed to have an operation that required one day off. I was given a medical certificate by my doctor. My boss said it would be considered annual leave as the surgery was elective. Is this right?”

Your boss is wrong. First I checked with a senior HR manager who said elective or not, you had a medical certificate saying you were unfit for work. I then asked Peta Tumpey, an employment law specialist and partner with TressCox Lawyers.

She says, “The HR manager was right. An employee who undertakes day elective surgery and provides his or her employer with a medical certificate stating that they are unfit for work is entitled to take an accrued day of paid personal/carer’s leave under the Workplace Relations Act 1996 (A lot of people still refer to this as “˜sick leave’).”

“If the employee does not have any accumulated days of personal/carer’s leave, then he/she is still entitled to take an unpaid day of leave if they have a medical certificate that classes them as ‘unfit’.

“The Act defines personal/carer’s leave to mean ‘paid leave taken by an employee because of a personal illness or injury of the employee’. The Act does not explain what is to be considered as an ‘illness or injury’, however the intention is that this will have a wide scope from a headache and cold to an emergency operation. The important point to note is that the injury or illness must render the employee unfit for work.

Ms Tumpey says the a medical certificate stating the employee is unfit for work following elective day surgery should be sufficient to prevent the employer insisting Alex use her accrued annual leave.

“The other interesting thing about the Act is that a medical practitioner has a very broad meaning and can cover your dentist, chiropractor, naturopath and even optometrist. It no longer refers to a medical doctor only,” Ms Tumpey says.

Employees employed by corporations are still subject to the minimum terms and conditions as outlined in the Act until the National Employment Standards are introduced on 1 January 2010. These will be very similar though in relation to personal/carers leave entitlements.

Alex, you now have the hard task of telling your boss. You could either have a word to HR about educating him or just be upfront and tell him you have done a bit of research on this matter and are passing it on for him to read. You want to then follow up to ensure you get the annual leave day back.