Given the recent spike in COVID-19 cases during the holidays period, it is not uncommon for employees to be unfit for work during their period of annual leave.
Under section 88(1) of the Fair Work Act 2009 (Cth), employees are entitled to take paid annual leave for a period agreed between them and their Employer. Such leave is reserved to be utilised at the employee’s discretion, with full-time employees covered by the National Employment Standards (NES) accumulating 4 weeks of paid annual leave per year according to section 87(1)(a) of the Fair Work Act 2009 (Cth). Annual leave is available for employees to take paid time off work once they have accumulated sufficient leave.
On the other hand, if an employee is unfit for work because of a personal injury or illness, they are entitled to take paid personal leave under section 97 of the Fair Work Act 2009 (Cth). Per the NES, full-time employees are entitled to 10 days of paid personal leave per year.
If you are unfit for work during your period of annual leave, you can request your annual leave be converted to paid personal leave instead. To do so, you should notify your employer as soon as practicable that you intend to take a specified period of paid personal leave and provide the necessary documentation such as a medical certificate pursuant to the requirements in section 107 of the Fair Work Act 2009 (Cth). Given that a period in which paid personal leave is taken cannot be counted towards an employee’s annual leave according to section 89(2) of the Fair Work Act 2009 (Cth), your specified period would be deducted from your personal leave and recredited to your annual leave balance.
If you do not have sufficient paid personal leave remaining, you may request to take unpaid personal leave instead or remain on paid annual leave.
Your employer should not prevent you from utilising your rightfully accumulated personal leave when you are unfit for work during your annual leave period. If you believe your employer is denying your workplace right to do so, call the employment lawyers at McDonald Murholme on (03) 9650 4555.