Absent Employees – How an Employer should deal with absent Employees

By Robert Lamb, Director at Hillhouse Legal Partners
| 5 min. read
employment & industrial relations

Key takeaways

  • Temporary absenteeism is usually lawful and Isolated incidents of lateness do not justify disciplinary action.
  • The Employer may be entitled to take disciplinary action.  But be careful and seek legal and medical advice.
  • Communication with the employee is paramount.

Employees can be absent for many reasons.  Temporary absenteeism is usually lawful and taking action against an employee in most circumstances will be unlawful and may lead to claims or Fair Work Action or court action.

 But what about absenteeism potentially outside these lawful entitlements?

 Isolated incidents of lateness do not justify disciplinary action.

 If an employee is frequently late for work or if it is the employee’s or their family member’s sickness, find out why and determine if the employer can do something to help.

 However if the employee:

  • Is frequently taking personal leave and declines to cooperate with the employer’s reasonable requests for medical information;
  • Refuses to provide further evidence of unfitness for work once the employer provides evidence they are fit for work;
  • Has not complied with reasonable notice or evidentiary requirements; and/or
  • Has exhausted their personal leave and is as away for more than 3 consecutive months or more than 3 months in total over the last 12 months and they have used all of their paid sick leave then they may no longer be protected from the unfair dismissal provisions under the Fair Work Act as those provisions relate to illness or injury.

 The Employer may be entitled to take disciplinary action.  But be careful and seek advice.

 Communication with the employee is paramount. 

 If you as the employer are considering terminating an employee’s employment on the basis that they have been on unpaid sick leave then you as the employer need to seek medical and legal advice before taking any action.

 Some tips for managing an ill or injured employee (Hor, Jaydeep (2020) Labour and Employment Law Manual at page 150)

 

DO

DONT

Plan meetings with the employee in advance

Fail to consider any relevant policies, procedures or industrial instruments

Prepare a script for each meeting with the employee, setting out key aspects of discussion

Go through the process alone – seek expert medical or legal advice as required

Provide the employee with notice of the meeting and a broad outline of topics to be discussed

Obtain an independent medical assessment and/or report without the employee’s consent unless the employee is reasonably directed to attend the independent medical assessment

Provide the employee with the opportunity to respond to any proposed course of action

Deny the employee paid leave when attending any employer directed medical examinations

Clearly communicate any changes to an employee’s duties and the period those changes to duties will apply

Fail to schedule a post medical assessment meeting with the employee

Keep detailed records of the meetings

Take irrelevant considerations into account when making decisions about the employee’s employment

 Again great care must be taken in such circumstances and failure to obtain legal and medical advice prior to taking such steps may cause the employer to be defending a very difficult and expensive Fair Work Commission, Court or Tribunal Claim.

 If you would like further advice around managing an employee on extended sick or personal leave or is otherwise absent, or any other employment matter, contact me at robert@hillhouse.com.au or call  07 3220 1144.

 

 

 

The information in this blog is intended only to provide a general overview and has not been prepared with a view to any particular situation or set of circumstances. It is not intended to be comprehensive nor does it constitute legal advice. While we attempt to ensure the information is current and accurate we do not guarantee its currency and accuracy. You should seek legal or other professional advice before acting or relying on any of the information in this blog as it may not be appropriate for your individual circumstances.