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Daniel, Solicitor
Category: Australia Law
Satisfied Customers: 5740
Experience:  Bachelor of Laws (dist) Graduate Diploma in Legal Practise. Admitted NSW Supreme Court / High Court
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I own a small child care business and a worker has decided

Customer Question

I own a small child care business and a worker has decided to take leave for a hair loss problem. This worker has told us that she has anxiety and it is NOT WORK RELATED. Since taking this leave she has been out to various social events posted on FB and also called other co workers laughing and joking about her time off and placing undue work loads on other staff. She has said she can provide a medical certificate when she returns and wants to be paid her personal leave entitlements. Can i dispute her application to be paid for this leave. Also is her ten days per year rolled over each year or does it start afresh each year. She has a history of taking leave for various social problems such as relationship issues and social engagements when family is visiting. She has taken sick leave and posted on FB showing her Family around Sydney. Other staff members are getting upset with her absences. Thank you for your response.
Submitted: 1 year ago.
Category: Australia Law
Expert:  Daniel replied 1 year ago.

Hair loss is not a valid reason, now work related.
Print / screen shot all Facebook entries NOW.

I would frankly have her employment terminated. Her leave of absence is not a valid.

To protect you, send her an email, demanding that she return to work immediately, or face termination. That way, you have given her sufficient notice to return to duties.

Customer: replied 1 year ago.
Under the work place practices act you cannot insist a worker return from personal leave or terminate their employment whilst they are on leave. Please give an answer that is in keeping with the NSW work place laws.
Expert:  Daniel replied 1 year ago.

Under what law?
I work as a Solicitor in NSW and not aware of that legislation you are referring to disallowing that.
A position can be terminated whilst they are on leave.

Customer: replied 1 year ago.
Fair Work Ombudsman states an employee cannot be dismissed if they are on paid or unpaid personal leave under three months. Even after three months they can apply for a wrongful dismissal claim if they feel it has been a harsh decision.It is VERY clear that a worker cannot be dismissed if they are on sick or personal leave.
Expert:  Daniel replied 1 year ago.

Yes I accept that, but the sick leave is not related to work, nor has it been agreed.

Customer: replied 1 year ago.
Regardless of personal leave being work related or not you cannot dismiss some one when they are on sick leave. Most people do not have work related illness when they are sick. You gave a wrong answer and told me to call her in and dismiss her. This advise could have caused a major problem with me and the worker could have sued for wrongful dismissal. Please concede this advise was wrong and refund the money i gave for legal advise when you clearly did not know the relevant legal facts. I have since consulted with another legal person and they have said DO NOT DISMISS HER WHEN SHE IS OFF ON SICK LEAVE.