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pegasus70
17-10-2012, 03:06 PM
Hi :)

We have an employee who has not yet quit his position with us, but when he has undertaken the pre-employment medical for another company they have found that he has a hernia. The other company has said they won't hire him unless he has this repaired through elective surgery.
He has asked to take personal/sick leave to cover the operation (he isn't aware we know this is for another job with another company), I just want to know what our rights are. Are we able to deny this request?

There is no precedence within the company of allowing employees to take personal/sick leave to cover elective surgery.

Can anyone help?

Qld IR Consultant
18-10-2012, 10:03 AM
What industrial instrument is in play? Award? EA? Common Law Contract?..... If he is still in your employ then you would be hard-pressed to knock back an application given that it is for surgery. At the end of the day if he was remaining in your employ then he would just take the leave and you'd be paying him anyway. The issue is the resignation is in play.

If he has been a good employee and he is leaving under good terms then there would be nothing wrong with you approving a portion of his notice period as sick leave and letting him have the surgery.

Purely depends I guess on the terms on which he is leaving and how you want to pursue it. I think however given the fact it is a legitimate medical condition, all be it covered only under elective surgery as opposed to emergency surgery, for the sake of a few days I'd approve it....purely my thoughts of course.

Moz
19-10-2012, 06:29 AM
Are we able to deny this request?


It sounds like you are being vindictive because you have somehow found out this guy has applied for another job, and might resign.

Someone can take a personal leave because they have got a cold, but you want to deny personal leave because someone needs a hospital operation to fix a hernia?

It's not like he's having a nose job to improve his looks! An untreated hernia can lead to very serious complications.

All surgery other than to deal with something immediately life threatening is effectively "elective", and just because the surgery is "elective" doesn't mean it's unnecessary. Surgeons don't typically work on weekends, unless it is a life threatening emergency, so when is he supposed to the hernia fixed?

The fact that he needs to get the hernia fixed before another company will offer him a job is coincidental. He still needs surgery, whether he was leaving or not.

As for precedents, they only matter when they exist.

pegasus70
21-10-2012, 07:58 PM
Ok, just to set the record straight, we don't want to lose this guy, nor are we being vindictive. The surgery is completely optional and not something that was bothering him, it's just that the other company doesn't want to take the risk. We are looking at ways to keep him with us as he is a well respected and reliable employee.
It just doesn't seem quite fair that we should have to pay for optional surgery if it is for something that isn't bothering him in his day to day life and the only reason he is having it is so that he can leave....
If it was a serious condition we would have no issues with it, but he has said it doesn't really bother him.

Moz
23-10-2012, 02:33 PM
Ok, just to set the record straight, we don't want to lose this guy

Haha, well denying him access to his personal leave isn't going to help you keep him!

I can understand how it might be somewhat irritating.

But look at it this way, if you hadn't "acquired" his personal/confidential information, you would be blissfully unaware that he was considering another job and you probably wouldn't have tried to stop him taking personal leave for a hernia operation.