QLD Employment Law - Signed Off as Sick Whilst Suspended?

[Stephen Roberts]

Hi there,

I am a director of a large advertising firm, and I am currently suspended pending investigations into alleged misconduct! The situation has affected me badly and I have had to see my doctor whom has suggested I be signed off work due to my current mental state!

My question is, "Can I be signed off sick whilst suspended from my role" under employment law?

I would welcome any help that anybody can give me.

Many thanks

 

[Rod]

Australian employment law doesn't recognise suspensions which means the answer is yes, unless your employment contract explicitly covers this situation, while possible, is unlikely. Recommend you check your contract to be sure.

Entitlements to use sick leave while on a different type of absence are still available.

If the misconduct allegations are false, then you may have additional entitlements to workers compensation. If you are unfairly sacked recommend you see a lawyer asap.

 

[Stephen Roberts]

Australian employment law doesn't recognise suspensions which means the answer is yes, unless your employment contract explicitly covers this situation, while possible, is unlikely. Recommend you check your contract to be sure.

Entitlements to use sick leave while on a different type of absence are still available.

If the misconduct allegations are false, then you may have additional entitlements to workers compensation. If you are unfairly sacked recommend you see a lawyer asap.

Thanks for your reply, I have checked my contract and suspension is not mentioned at all, as you suggested!

Can you also tell me, I know personal leave is accrued throughout the year, but does this sick leave reset each year back to 10 days or does it count from the start of my employment?

Reason I ask is that I have been employed for 6.5 years in this roll and have taken very little time off throughout this period!!

Thank you

 

[Rod]

Sick leave accrues from date of employment and does not reset each year.

 

[Stephen Roberts]

Sick leave accrues from date of employment and does not reset each year.

Hi Rod

Thanks once again for your reply and information, but I wondered if you know the answer to this next question?

As I am currently suspended, as previously mentioned, it has been requested that I respond to the allegations in the notice by the 20th January, but if I am signed off sick by my doctor, using my paid personal leave, am I still duty bound to reply by the requested date, or will this be paused until I am fit for work?

The stress is the reason for my being signed off so I am hoping that I don't have to deal with the issues until I am well enough, and I suppose when my doctor sees that I am fit for work once again!

Thanks In anticipation.

 

[Rod]

It would be unfair and unreasonable of them to expect a reply by 20th Jan if you are unable to reply due to illness.

Hard to know the correct course of action as I don't know all the facts. The nature of the misconduct may indicate what your best next step is.

One course of action is to send back a statement saying you are unwell, that you have medical advice saying you need to rest to recover and that you will respond when you receive the all clear from your doctor.

If criminal misconduct is being alleged, might be best to give no response and seek legal advice.

 

[Serge Gorval]

Hi Stephen

Just to clarify some issues above: An employer can suspend you with pay to investigate. There is no recession argument from suspension alone.

Once you have been declared unfit for work, this includes responding to allegations and a prudent employer would generally hold off from taking any action as there becomes a serious risk of going down the path of a claim for adverse action.

As far as responding to any allegation in writing, you need to be mindful as to how you respond and ultimately what you want to achieve -> reinstatement to role, golden handshake, etc. as this would be the most appropriate time for a without prejudice discussion.

I suggest you speak with a solicitor confidentially.

 

[Rod]

Note if an employer suspends an employee without pay, they are breaking the law unless it is stated in the employment contract, award, or by law (eg Government jobs).