Sickness

Personal (sick and carer's) leave lets you take paid time off when you are sick or injured, or to care for a member of your immediate family or household who is sick, injured or affected by an emergency. We explain how much you get, what evidence your employer can ask for, and your protection from dismissal.

What Are My Rights To Paid Sick Leave?

If you are in the national (Fair Work) system, and most employees of companies in WA are, you are entitled to paid personal/carer's leave (often called sick leave) under the National Employment Standards in the Fair Work Act 2009 (Cth).

You can take paid personal/carer's leave (s 97) if:

you are not fit for work because of your own illness or injury; or
you need to care for or support a member of your immediate family or household who is ill or injured, or affected by an unexpected emergency.

How much? Full-time employees get 10 days of paid personal/carer's leave for each year of service; part-time employees get a pro rata amount based on their ordinary hours (s 96). It builds up progressively through the year, and unused leave carries over from year to year. It is paid at your base rate of pay for the ordinary hours you would have worked (s 99).

Casuals do not get paid personal/carer's leave (the casual loading is paid instead). But every employee, including casuals, is entitled to 2 days of unpaid carer's leave each time a member of their immediate family or household needs care or support because of an illness, injury or unexpected emergency.

Your award, enterprise agreement or contract may give you more.

WA State System Employees

If you work in the WA state system (for example for a sole trader, a partnership, a WA council or the WA public sector), your entitlement comes from the Minimum Conditions of Employment Act 1993 (WA) instead: paid personal leave equal to the hours you ordinarily work in 2 weeks, up to 76 hours a year, building up and carrying over (s 20), and up to 2 days of unpaid personal leave for each occasion (s 21). Your WA award may give you more. See minimum conditions in the WA state system.

Do I Need A Doctor's Certificate?

Notice

You must tell your employer as soon as practicable that you are taking leave, even if that is after the leave has started, and how long you expect to be away (s 107).

Evidence

If your employer asks, you must give evidence that would satisfy a reasonable person that the leave was for a genuine reason (s 107). A medical certificate is the most common form. A statutory declaration can also be enough, depending on the circumstances and on what your award or agreement says.

If You Do Not Provide It

If your employer reasonably asks for evidence and you do not provide it, you may not be entitled to be paid for the leave.

Reasonable Requests

Employers can ask for evidence even for a single day, but the request itself should be reasonable. Many awards and agreements set rules about when evidence can be required, so check yours.

Does Unused Sick Leave Carry Over To The Next Year?

Yes. Paid personal/carer's leave accumulates from year to year under the National Employment Standards (s 96), and under the WA Minimum Conditions of Employment Act 1993 (s 20) for state-system employees.

It keeps building up while you are working and while you are on paid leave. Periods of unpaid leave generally do not count as service, so leave does not build up during them.

Unlike annual leave, unused personal leave is not paid out when your employment ends: the National Employment Standards require only annual leave to be paid out (s 90), and the WA Act says so expressly (s 22).

I Am Genuinely Sick And Have Taken Sick Leave For A Long Time. I'm Worried That My Employer Might Fire Me Because Of This. What Are My Rights?

You Cannot Be Dismissed For A Temporary Absence

Section 352 of the Fair Work Act says your employer must not dismiss you because you are temporarily absent from work because of illness or injury. The protection applies if you give a medical certificate or statutory declaration within 24 hours of the absence starting (or a longer reasonable time), or comply with your award or agreement's notice and evidence rules, or have given evidence for paid personal leave (Fair Work Regulations 2009 reg 3.01).

The 3-Month Rule

The protection does not apply if your absence lasts more than 3 months, or your absences total more than 3 months in a 12-month period, unless you are on paid personal/carer's leave for the whole of the absence. Time away on workers’ compensation does not count as paid personal leave for this purpose.

Even After 3 Months

Losing the s 352 protection does not mean your employer can simply dismiss you. A dismissal because of illness or injury may still be unfair, discriminatory on the ground of disability, or adverse action. Your employer usually needs up-to-date medical evidence about whether you can do the inherent requirements of your job, with or without reasonable adjustments, and must give you a fair chance to respond. See unfair dismissal, general protections and disability discrimination.

Time Limits And Help

If you are dismissed, you have only 21 days from the day the dismissal took effect to lodge an unfair dismissal or general protections claim with the Fair Work Commission (28 days for an unfair dismissal claim in the WA state system). If you are worried about your job because of illness or injury, contact us for a free confidential discussion.

Case studies

How the law played out in real cases

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Published decisions of courts and tribunals, summarised in plain English from the published decision. Every case turns on its own facts.