Slater & Gordon : Don’t get caught out chucking a sickie this Australia Day weekend

While widespread support for the great Australian 'right to chuck a sickie' can be traced back to former Prime Minister Bob Hawke's comments after the 1983 America's Cup, employees should think twice before making Australian Day a four day long weekend this week.

Slater and Gordon Employment Lawyer Aron Neilson said employees caught 'chucking a sickie' could be given a formal warning, or even lose their job in some cases.

'While workers cannot be fired for taking legitimate sick leave, they can find themselves in hot water if they are caught lying to their boss,' Mr Neilson said.

'Workers looking to have a break over the Australia Day period should apply for annual leave because chucking a sickie is just too risky.'

There have been cases in Australia where employees have been dismissed following incidents involving sick leave, including:

• A mine worker in Central Queensland who told his supervisor he was 'going to be sick anyway' after his leave application for the 2014 Anzac Day weekend was rejected. While a doctor testified in court that he was actually sick for the days he missed work, the employee was dismissed for threatening to be dishonest in a way that 'irreparably broke down the employment relationship'.

• An ACT bank worker who lost her job after she was caught forging a medical certificate. Her employer noticed the certificate didn't include a doctor's provider number, so they called the surgery which confirmed it did not issue the document. The employee made an unfair dismissal application which was denied on the basis that she had been dishonest, fraudulent and had breached the workplace code of conduct.

• A general manager of a migration training service who was dismissed while she was on sick leave. Although she told her employer that she would provide a medical certificate upon her return, she was terminated for 'failing to keep her employer aware of her absences from work'. Her unfair dismissal claim was successful, because her termination breached a provision of the Fair Work Act that protects workers who are temporarily absent from work due to illness.

Mr Neilson said workers who are genuinely sick should not be discouraged from taking a sick day because they are scared of how it may look to their employer.

'Of course, if you are sick on the day after a public holiday, you should not go into work, especially if you could potentially make others ill,' Mr Neilson said.

'It is important for employees to be familiar with their leave entitlements and to seek further clarification where necessary.'

What are my rights?

• Under the Fair Work Act 2009, full-time employees are entitled to accrue ten days paid sick leave per year which can be taken when they or an immediate family member is ill.

What are my obligations?

• Employers have the right to ask for a medical certificate and employees must comply, even if they've only been off for one day.

Can my sick leave application be rejected?

• If an employee does not supply evidence when asked by their employer, they might not be entitled to be paid for their sick leave and could face further consequences if they were found to be dishonest, fraudulent or breached the workplace code of conduct.