Cosmetic surgery - Personal Leave?

[CLM]

Just wondering if anyone has had this experience and can guide me as to whether employees are entitled to take personal leave for cosmetic surgery?

We have been unable to determine if this is elective or non-elective surgery, as the employee does not wish to discuss this with us. All we know is that the employee requires time off to venture overseas for cosmetic surgery.

The employee has stated that they will be able to provide a medical certificate certifying them as unfit for work for a period of time following the procedure (from the overseas surgeon). I think what we are going to do is advise the employee that all travel time and time off prior to the surgery is annual leave, and that so long as they have a certificate, any time off post-surgery for recovery can be taken sick leave.

Strange circumstances and I haven't been able to find a definitive answer - only advice I have received is that it is at the employer's discretion. This employee is generally pretty good so we didn't think it would be right to flat out refuse the personal leave.

[Moz]

Certainly an interesting question!

Firstly, whether the surgery is elective or non-elective is the issue here. Just because surgery is elective doesn't mean it isn't necessary in the eyes of the individual. Also, there are plenty of things that can be the subject of elective surgery today that will eventually become non-elective if left long enough! So I don't believe you have a right to say to an employee that they take sick leave just because their surgery is elective.

Just because it's "cosmetic surgery" doesn't necessarily mean it's for vanity (i.e a nose job or a face lift), it could be something less obvious but very personal that is impacting on their private life. Clearly it is important to them if they are risking going overseas to get it done.

As for validity of the medical certificate, this is also a tricky issue. This probably falls under State legislation and may vary between jurisdictions within Australia.

There have been cases in recent years where Australian courts have said that an employer cannot disregard or reject a medical certificate just because it is from overseas. That is not to say that an employer cannot reject a medical certificate when there is evidence that the medical certificate was not warranted. It seems from these cases that an employer is entitled to make enquiries of the issuer of the medical certificate to ascertain whether it is valid and/or whether they should accept it.

Here's a some reference material;
Page 4 of this doc from lawyers Russell Kennedy

Have they said how long they are likely to be away for?

At the end of the day they only have a limited amount of sick leave and if it isn't going to inconvenience you to much as an employer maybe it would be better to let it go without a fuss. After all, they have been very up front about it. They could have just gone on holiday without saying anything, had the surgery done, then phoned in sick!

The usual disclaimers apply!

[CLM]

Thanks Moz - the employee has asked for four weeks leave (and has around 20 personal days accrued) so would not be able to take the entire time as sick leave in any case. After much discussion, we have decided to grant any recovery time as sick leave providing the employee is able to give us a certificate. We think this is the right thing to do, and I do believe any time spent travelling pre-operation is a fair ask to be taken as annual leave.

[Moz]

Originally Posted by CLM

After much discussion, we have decided to grant any recovery time as sick leave providing the employee is able to give us a certificate.

That's actually what I meant. After all, the employee isn't medically unfit for work until they have the operation, and it's their choice to travel overseas.

Good compromise, IMHO.

[Mark D]

Yes, good way to approach it, CLM. I wouldn't pay sick leave for the pre-surgery travel time either.

On the topic of elective vs non-elective surgery, bear in mind that cosmetic surgery isn't the only type of surgery that can be elective - getting that knee reco done to fix that old footy injury or even a bloke getting the snip could both be classed as elective, and sick leave would certainly be payable if a certificate is produced after those surgeries indicating that the person is unfit for work for a period of time.