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Melbourne Cup Day sickie: Can you be fired for taking sick leave?

So you pull a sick day on or after Melbourne Cup... What are the odds you get fired? (Source: Getty)

If you were planning to pull a sick day tomorrow, your boss is probably ready for it.

Melbourne Cup Day – which is recognised as a public holiday in Victoria – is said to cost more than $1 billion dollars in productivity every year, according to data analysis by Ranstad.

And while there are upsides to giving staff the day off work for the afternoon, employers are well aware of the mischief that workers may get up to after a few drinks.

For those who are contemplating pulling a sick day, what’s the worst that can happen? Can you actually get fired for it?

Yahoo Finance asked a few workplace and employment experts to find out.

When you can – and can’t – take sick leave

Workers are entitled to take personal/carer’s leave under the Fair Work Act 2009 (Cth) if:

  1. They are unfit for work due to personal illness, or personal injury; or

  2. To provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care and support.

So those those thinking of chucking a sickie should be aware of their workplace policies relating to leave, said JFM Law solicitor Thomas Du.

“Your employer may have a right to not pay you if you are unable to provide a medical certificate or evidence of your sick leave or may even subject you to disciplinary action,” he said.

Recruitment firm Robert Half director Nicole Gorton added that while employees were entitled to take sick leave, employees were entitled to take action on anyone abusing their leave privileges.

“In these instances, employers should have reasonable cause to believe their employee has abused the terms of their sick leave and enough evidence of the misconduct to support their claim – for example, social media content or work emails and communication,” she told Yahoo Finance.

“The current Fair Work guidelines allow employers to ask employees to give evidence for their absence, typically a medical certificate – even if they have only been absent one day.” These rules are typically articulated in your workplace leave policies or employee agreements, she said.

What’s the worst that can happen?

Being caught ‘chucking a sickie’ can impact workers’ reputation, job prospects, and even put their employment under threat, Gorton warned. The severity of the repercussions often depends on the circumstances in which the worker is discovered.

“Even if there are no official repercussions taken by the employer, being found out for lying about a sick day can incur long term damage to professional reputation. Losing the trust of peers and colleagues can harm an employee’s career progression within their organisation and beyond,” Gorton said.

According to her, if your ‘sickie’ is seen as part of an ongoing pattern of poor performance and bad behaviour, being caught could mean your employer escalates the infringement and then takes disciplinary action by thinking twice about annual bonuses or career progression.

And yes – even termination of contract, Gorton added.

In really serious circumstances, you can be fired

“A worker could potentially be fired if they misuse or abuse their right to take sick leave,” Employsure senior employment relations adviser Isabella Zamorano told Yahoo Finance. But this typically won’t happen if medical evidence in support of their absence is provided.

“If this is provided, an employer should only discipline an employee if they can prove that the employee was pulling a sickie. As a general rule, it is only in the most extreme cases of dishonesty, that employees are fired for serious misconduct,” she said.

So can you be fired from work for pulling a sickie on Melbourne Cup Day? In short, the answer is generally no – especially if you’ve got a medical certificate – but if there’s evidence that stacks up against you, or you’ve got already got a very bad track record, it could be grounds for termination.

Not only that, but you can technically show up and still get in trouble, said The Workplace Layers’ principal Hannah Ellis.

“It may be that in some circumstances choosing to overindulge the day before work (for example at Melbourne Cup) such that an employee can’t perform their duties the next day is misconduct,” she said.

What are my options?

Just a suspicion that you weren’t actually sick on a day you took sick leave won’t be enough to get you fired, according to Ellis.

If you know you won’t be your best self after Melbourne Cup, there are right and wrong ways to tell your employer you won’t be showing up to work.

First of all, you can plan ahead by using your annual leave or other leave that you have accrued that you’re entitled to.

Secondly, you may work in a flexible workplace which might allow you to work from home or for you to accrue overtime hours for the equivalent amount of time off. If you’re thinking of taking Melbourne Cup Day or the day after off, flag it with your manager early, according to Robert Half.

Don’t forget to also find out if office hours may resume after a certain time. While the official business day in some offices may be over once the race starts, other workplaces may stipulate ordinary work hours resume after a certain time.

And wrongful dismissal could see your employer could face the music.

“Where disciplinary action is based on insufficient evidence, there are significant risks for the employer arising from a successful unfair dismissal claim or adverse action claim,” said Ellis.

“Employees can be reinstated if successful in these claims or awarded compensation.”

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