Generally, when an employee has the flu, they are entitled to paid personal leave under the National Employment Standards (NES) in the Fair Work Act 2009 (Cth). If their child has the flu, they are entitled to paid carer's leave. But what happens in circumstances that are a little more complex? Would you know when your employees are entitled to paid personal/carer's leave?

Here we answer four questions about whether an entitlement to paid personal/carer's leave arises:

1. Is an employee entitled to paid personal/carer’s leave for elective medical treatment?

The NES provide that an employee may take paid personal/carer's leave if the leave is taken because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee. But what if they are not fit because of an elective medical treatment, e.g. cosmetic surgery?

In Australian Workers' Union v Cement Australia (2025), Commissioner Hunt of the Fair Work Commission (FWC) observed that the NES entitles employees to paid personal/carer’s leave for elective cosmetic surgery, and this is no different than their entitlement to paid personal/carer’s leave if they have, for example, a burst appendix. If medical certificates are produced declaring the employee to be too ill to attend work, they are entitled to be absent from the workplace and paid for it, even if they are ill as a result of elective treatment.

2. Can an employee take NES personal/carer’s leave to attend a medical appointment?

An employee is not entitled to paid personal/carer’s leave to attend an appointment unless the employee is unfit for work because of illness or injury. The FWC Full Bench took this into account in drafting the model clause for the award entitlement to family and domestic violence leave. The clause makes it clear that an employee may take unpaid family and domestic violence leave to attend medical appointments.

3. Can an employee take NES personal/carer’s leave to take a family or household member to a medical appointment?

An employee will be entitled to paid personal/carer’s leave to take a family or household member to a medical appointment if a personal illness or injury or unexpected emergency is affecting that member and they require the employee’s care or support, including taking them to the medical appointment. Based on the ruling of Commissioner Hunt, this may include where their personal injury flows from elective cosmetic surgery.

In Wilkie v National Storage Operations Pty Ltd (2013), an employee left work to look after their unwell child and sought to take personal/carer's leave. The employer took adverse action against the employee by demoting her, citing her need to take personal/carer's leave as the reason. The FWC found that the employee applicant had a workplace right under the NES to take personal/carer's leave, and the warning issued for her leaving to attend to a family emergency amounted to adverse action taken in relation to the exercise of that right.

4. Can an employee take NES personal/carer's leave without having to produce a medical certificate to support it?

An employer can require evidence that would satisfy a reasonable person that the personal/carer's leave is being taken for a reason permitted by the NES. It is likely to be reasonable to require a medical certificate or statutory declaration to be produced where the absences extend beyond a short period or are repeated absences on particular days.

The falsification of a medical certificate to support the taking of personal/carer’s leave may constitute a valid reason for dismissal, but it may not be of sufficient gravity or seriousness to justify dismissal in all cases. In Curious Grace v O’Brien (2019), the FWC ruled that the admitted falsification of a medical certificate did not justify dismissal in circumstances where the manager’s requirement to produce a medical certificate to cover the relevant absence (of 1.5 hours to attend a job interview) did not accord with the employer’s own policy, the employee had previously been warned against taking time off in lieu to cover work absences, and the employee was concerned that if she did not produce a medical certificate she would be dismissed given that she had previously been subject to victimisation and bullying at work. The FWC observed that, while not condoning the conduct, it was an act of foolishness undertaken in a state of desperation which warranted disciplinary action short of dismissal.