Employment Law
Personal Leave in Australia: Sick Leave & Carers Leave Explained
Managing personal leave — sick leave and carers leave — is a daily reality for employers. Understanding what employees are entitled to, what evidence you can request, and how to manage excessive absences without breaching the law is essential.
What the Law Says
Personal/carers leave is one of the 11 minimum entitlements under the National Employment Standards (Part 2-2, Division 7 of the Fair Work Act 2009):
- Section 96 — Full-time employees are entitled to 10 days paid personal/carers leave per year. Part-time employees receive a pro-rata amount.
- Section 97 — Personal leave can be taken when an employee is not fit for work due to personal illness or injury, or to provide care or support to an immediate family or household member who is ill, injured, or has an unexpected emergency.
- Section 107 — Employers can require evidence that would satisfy a reasonable person, such as a medical certificate or statutory declaration.
- Section 101 — Personal leave accumulates from year to year and any untaken balance carries over. It does not expire and is not paid out on termination.
What Employers Must Do
Provide the full entitlement
Ensure personal leave accrues correctly from the start of employment. Track balances accurately in your payroll system and include the balance on payslips.
Accept genuine leave requests
An employee who notifies you they are unwell and provides evidence (where required) is exercising a legal right. Do not create barriers or culture that discourages legitimate leave.
Have a clear evidence policy
Set out in your workplace policy when evidence is required (e.g., after 2 consecutive days, for patterned absences, or for all absences). Apply consistently.
Track and monitor patterns
While you cannot penalise genuine sick leave, you can monitor patterns (e.g., frequent Mondays/Fridays, absences after events) and address them through supportive conversations.
Support return to work
For extended absences, implement return-to-work plans and consider fitness for duty assessments. Work with the employee to facilitate a safe and sustainable return.
Keep accurate records
Record all personal leave taken, evidence provided, and any discussions about attendance. Records must be kept for 7 years.
Common Mistakes and How to Avoid Them
Mistake: Refusing to approve genuine personal leave
Fix: Employees do not need your approval for personal leave — they need to notify you and provide evidence if required. You cannot reject a genuine claim.
Mistake: Paying out personal leave on termination
Fix: Unlike annual leave, personal leave is not paid out on termination. If you have been doing this, you are overpaying. Review your payroll practices.
Mistake: Disciplining employees for being sick
Fix: Taking adverse action against an employee for exercising a workplace right (personal leave) is a breach of general protections. Focus on patterns and evidence, not individual absences.
Mistake: Not accepting alternative evidence
Fix: Since recent amendments, pharmacist certificates and certificates from other registered health practitioners are acceptable evidence. Update your policies accordingly.
Penalties and Consequences
Breaching personal leave obligations can result in:
- General protections claims — penalties up to $93,900 (individual) or $469,500 (company) for taking adverse action because an employee exercised a workplace right.
- Underpayment claims — if personal leave is not accrued or paid correctly, the Fair Work Ombudsman can pursue back-pay and penalties.
- Unfair dismissal findings — dismissing an employee for legitimate sick leave usage is very likely to result in an unfair dismissal finding.
When to Get Professional Help
Consider engaging an HR consultant when you:
- Have an employee with chronic absenteeism and are unsure how to manage it
- Need to develop an absence management policy
- Are considering fitness for duty assessments
- Want to ensure your personal leave policies and payroll practices are compliant
Jordan Firme Business Consultants helps employers develop effective absence management strategies that are legally compliant and practically workable.
Frequently Asked Questions
Full-time employees are entitled to 10 days of paid personal/carer's leave per year under the NES. Part-time employees receive a pro-rata amount based on their ordinary hours. Personal leave accumulates from year to year and does not expire. Casual employees are not entitled to paid personal leave but are entitled to 2 days of unpaid carer's leave per occasion.
Yes, employers can require evidence for any absence, including a single day. The Fair Work Act allows employers to request evidence that would satisfy a reasonable person that the leave is genuine. However, your workplace policy should clearly state when evidence is required. Many employers only require evidence for absences of 2 or more days, or for absences forming a pattern.
You can request a medical certificate from a registered health practitioner or a statutory declaration. Since 2023, evidence can also include a pharmacist certificate or a certificate from other registered health practitioners such as physiotherapists or psychologists. The evidence must be provided to the employer as soon as practicable.
This is very high-risk. Dismissing an employee for taking personal leave can constitute adverse action under the general protections provisions of the Fair Work Act. However, if absences are genuinely impacting the business and you have exhausted all reasonable management steps (requesting evidence, fitness for duty assessments, return-to-work plans), you may have grounds. Always seek professional advice first.
Personal leave continues to accrue during periods of paid leave (annual leave, long service leave) but does not accrue during unpaid leave, including unpaid parental leave. Personal leave balances carry over from year to year indefinitely.
Yes. Personal leave covers any absence due to illness or injury, which includes mental health conditions. Employees do not need to disclose the specific nature of their illness on a medical certificate — it only needs to confirm that the employee is unfit for work for the relevant period.
Need Help Managing Personal Leave?
Our HR consultants can help you develop compliant absence management policies and handle complex leave situations.
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