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NSW Employment Law - Questions on Sick Leave, Wages and Dismissal

Discussion in 'Employment Law Forum' started by Wiggins, 4 February 2016.

  1. Wiggins

    Wiggins Well-Known Member

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    Ok, this is a doosie ... I will try to make concise questions as possible and I would tremendously appreciate some feedback :)

    Overview.
    Employed less than 12 months and suffered a major physical cerebral event after 4 months into the job. It left me a bit incapacitated for a while and I returned to work 6 weeks later for about 4 weeks.

    My mental state was badly affected after the short return to work (massive unreasonable work stress) and spent almost a month thereafter in a psych clinic. Still off work with a sick certificate currently.

    Questions:

    i) Non-payment of salary: Manager told me it was OK to work while off sick if I felt up to the task if I got bored. After I returned to work 1st of the month, the employer did not pay one week's wages, while citing it would be "illegal to pay me" as my sick note covered me for my first week back (however employee was asking me to do work that week - maybe 90 e-mails to back it up plus did actually pay me for 2 half days for the prior week before going back to work full time).

    Can an employer actually refuse to pay you for work done at their request while under a sick note under Employment Law?

    ii) Being asked to work while off sick - Employer has also had me do even more work while still off sick. Maybe to the tune of 20 hours over the last 2 months in addition to (i) and even as recently as 2 or 3 hours today.

    Is it actually legal / appropriate to be asked to work while mentally ill, on a sick leave and legal action commenced? Also, should I be entitled to be paid for work done in that time?

    iii) Dismissal Events: There was a couple of episodes where some fruity exchanges happened while I was in the middle of my breakdown. Consequently, the employer wants to terminate me for inappropriate behavior et al, given how I talked to my boss, etc. I did not respond to their list of allegations (again, just too fragile to cope with it and I have been under the care of a psychiatrist who is firmly of the opinion that all my issues started after my stroke)

    Consequently, following my lack of response, they have offered me a deed of release that is quite onerous and I am not comfortable signing as it is very one sided, demands that I forego any entitlement to missing pay / further actions etc.

    Given that I did not respond within their lawyers allotted time frame, am I still able to go to the tribunal / commission and will my lack of response to them be a major black mark in its determinations?

    Thanks in advance for any help.
     
  2. Wiggins

    Wiggins Well-Known Member

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    Lol - I told you it was a Doosie ...
     
  3. Wiggins

    Wiggins Well-Known Member

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    Answer on one of the point found!

    If anyone else is interested in the "being asked to work while on sick leave" issue. I have just called and spoken to 2 different people at the Fair Work Ombudsman's Office and both times got essentially the same answer "

    "If you have a sick certificate and your employer either asks you to work, OR agrees that you can work during that time then they have to pay you if you worked. It's that simple"

    It was stated basically that "there is a simple contractual situation. The employer made you the offer to go back to work early, you accepted the offer and, therefore, should receive "consideration" IE Salary for the work that you did. If they are refusing to pay you for that time, then your employer has the burden of responsibility to prove why you did not get paid for that time."

    There was then another caveat mentioned, which really makes perfect sense:

    "If however you have broken your arm and stock shelves in a supermarket then ask to go back to work and they think you are still unfit, then they can decline your offer and you would not be paid.
     

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