Personal Leave – What you need to know about asking for evidence

Personal leave is a core aspect of employment entitlements in Australia. It provides employees the necessary time off for illness, injury, or to care for an immediate family or household member. This right is protected under the National Employment Standards in the Fair Work Act.

Ideally, employers should have clear policies highlighting the expectations around personal leave, such as qualification for entitlements, notification requirements, and when evidence is required.

Evidence, if asked for, needs to convince a reasonable person that the employee was genuinely entitled to take leave or be absent from work. Some common scenarios when evidence may be asked for and what type of evidence is acceptable include:

• Absence due to illness or injury: When employees cannot attend work due to their illness or injury, they are generally expected to provide evidence in the form of a medical certificate from a registered medical practitioner.
• Caring Responsibilities: If an employee needs to take personal leave to care for a family member or household member who is ill or injured, evidence may be required to support their absence. This could include a medical certificate for the family member or a statutory declaration outlining the care responsibilities and the need for leave.
• Personal or Carer’s Responsibilities: Evidence may be necessary when an employee must take personal leave for reasons other than illness or injury, such as attending to emergencies or caring for a family member. This could involve providing a statutory declaration explaining the circumstances necessitating the leave.

We also recommend that employers always request evidence when employees utilise unpaid personal leave after exhausting all their paid personal leave entitlements.

Employers always have the discretion to request evidence in any instance, even if their policy does not dictate it. This could include when the employer sees a pattern emerging in an employee’s absences. For example, the employee consistently calls in sick on days that follow a public holiday.

Types of Evidence

Employers need to understand the type of evidence acceptable under the law and ensure a fair and consistent application across the workforce. Although there is no standardised list of acceptable or not acceptable forms of evidence, the following examples are generally recognised as being trustworthy sources:

Medical Certificates

A registered medical practitioner must issue Medical Certificates and, according to the Australian Medical Association, it should include the following details:

• The patient’s name
• The medical practitioner’s name and address
• The date of the examination
• The date of issue (may differ from the date of examination if the employee couldn’t see the doctor the same day they fell ill)
• A statement indicating that the employee is unfit for work, along with the duration of incapacity, if possible.

A diagnosis is not legally required, and the certificate can be backdated if it meets the criteria for a valid medical certificate.

Employers are strongly advised to accept a medical certificate if it comes from a registered practitioner, including those issued during a telehealth appointment.

If considered reasonable, employers can ask for further medical details with the employee’s permission. These limited circumstances would include:

• ensuring the safety of the workplace and its employees by seeking confirmation that the employee is fit to return to work,
• enquiring about making reasonable adjustments for an employee returning to work after an extended period of absence or
• if the employee is in a safety-critical role and their condition or medication might affect them due to the nature of their role.

If an employer suspects a medical certificate is invalid, they can contact the medical centre to confirm its validity. This would include confirming if the named practitioner issued a medical certificate for the named employee on the stated date.

Statutory Declarations

When an employee requires personal leave for reasons other than illness or injury, such as caring for a sick family member or attending to personal emergencies, a statutory declaration may be accepted as evidence. A statutory declaration is a written statement declared true by an authorised witness, such as a Justice of the Peace or a solicitor.

The statutory declaration should outline the reason for the leave, the duration required, and any other pertinent details supporting the employee’s request for personal leave.

Unacceptable examples of evidence

There are no laws that outline what would be considered unacceptable evidence. However, there are instances where an employer can question it. We strongly suggest that this be done with the utmost caution and only when clear evidence to dispute their documentation is available

• Inadequate Documentation: Documentation that does not meet the requirements outlined by the employer or statutory regulations can be rejected. For instance, an incomplete medical certificate may be deemed insufficient evidence for personal leave.
• Fraudulent Documentation: Any fraudulent or misleading documentation submitted to support a personal leave claim is strictly prohibited and will not be accepted. This includes falsifying medical certificates, statutory declarations, or any other documentation. For example, after having their annual leave request to attend a sporting event denied, the employee provides a medical certificate stating they are medically unfit for work but then attends the event and posts about it on social media.
• Unrelated Documentation: Providing documentation that does not directly relate to the reason for personal leave may not be accepted. For example, submitting a medical certificate for a minor ailment when the employee takes leave to care for a sick family member would not be considered appropriate evidence.

Depending on internal workplace policies, the following may also be deemed unacceptable:

• Self-Certification without Verification: Simply stating that one is unwell without any form of verification or evidence to support the claim may not be accepted, in some cases, as sufficient grounds for personal leave.
• Unsupported Absences: Absences without notification or explanation may not be valid grounds for personal leave. Employees are generally expected to notify their employer as soon as practicable and provide appropriate evidence to support their absence.

Adhering to the regulations regarding personal leave evidence is essential to ensure fairness, transparency, and compliance with employment laws. Employers must also maintain confidentiality regarding personal leave reasons and associated documentation, adhering to privacy laws and regulations.

Open communication between employers and employees is vital regardless of the type of evidence provided. This can mitigate misunderstanding and potential conflict. Clear policies shared with employees regularly can also help ensure clarity for all parties.

Need help navigating a tricky issue related to personal leave? Contact the Strawberry Seed team for advice specific to your circumstances. You can also watch a recording of our recent webinar, Let’s Talk About Personal Leave.

Co-authored with Chloe Knott, HR Coordinator.