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09 December 2016

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Employment Law
Victoria

Asked

Dear Mentor,

If an employee is on long service leave and they injure themselves, are they able to use their sick leave (with medical evidence) to extend the period of their long service leave? I recall that the use of sick leave is permitted while on annual leave but was unsure whether the same applies to long service leave.

Thank you for any comments you can offer.

Kind regards.

Answered

Thanks for the question.

For the purposes of this question we will assume that the employee concerned has requested that the period of long service leave being taken be ‘extended’ by a period equivalent to the period of his/her medical incapacity.

Starting point – Granting of long service leave

Long service leave may be taken after an employee has established an entitlement to leave.   

The Long Service Leave Act 1992 (Vic) (LSL Act) provides that an employee who is entitled to long service leave and an employer may agree when the employee is to take the leave.  If agreement cannot be reached the employer may direct the employee to take long service leave (LSL) at a particular time with a minimum of three months written notice.

Whilst the employee may accrue a statutory right to LSL, it is in the employer’s discretion as to when the leave is taken.

While the LSL Act refers to the effect of a public holiday falling during a period of LSL, it is silent as to the effect of an employee taking personal/carer’s leave whilst on LSL.

The Fair Work Act 2009 does not expressly prohibit the taking of personal/carer’s leave whilst on LSL.

So where does this take us?

We consider the better view is that an employee may access personal/carer’s leave whilst on LSL but the discretion rests with the employer as to whether the employee may ‘extend’ the granted period of LSL by a period equivalent to the personal leave.  

If the employer did not grant the extension request, the period of LSL (equivalent to the period of personal leave taken) would need to be recredited to the employee’s remaining LSL bank.

And, yes, you are correct: the use of sick leave is permitted while on annual leave.

Kind regards,

Mentor