An employee returns from annual leave and notifies her employer she was sick for the duration of the leave.

Does an employer have to convert the annual leave to sick leave?

The short answer is yes.

Provided the employee has sufficient personal leave accruals available and they have complied with notice and evidence requirements, they should be paid personal leave and have their annual leave accruals reinstated.

The Fair Work Act 2009 provides that an employee is not taken to be on paid annual leave if they are on any other leave or period of absence under the National Employment Standards (other than unpaid parental leave).

Although an employee may initially book time off as annual leave, if an entitlement to the following forms of leave arises during this time, the annual leave should be converted to the relevant leave including:

• Personal/carer’s leave
• Compassionate leave
• Public holiday
• Long service leave
• Community service leave, and
• Any other leave or absence under the NES, other than unpaid parental leave.

It is recommended you ensure the employee has complied with any applicable notice and evidence requirements for the relevant leave.

You should check any applicable policy, contract of employment or award/enterprise agreement to confirm what are these notice and evidence requirements.

Failure to comply with such requirements may be subject to disciplinary action, up to and including termination of employment.

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