Absenteeism

Absenteeism is often one of the most difficult issues for businesses to manage. Employers may believe that employees are abusing sick leave and taking time off when they are not genuinely ill, but are unclear of how to manage the situation without breaching legislation.

If absenteeism is not properly managed then it can have a significant negative impact on an organisation’s productivity, profitability and morale.

An employer should be aware of how to best manage such situations. Consideration should be given to the following:

• Ensuring a policy to assist in preventing or pre-empting absenteeism is put in place and that employees are made aware of and regularly trained on the policy
• Ensuring HR professionals or other Managers are aware of the best way to lawfully manage an employee who is or suspected of becoming a long term absentee
• How to optimise staff engagement.

Notification of the absence

Employers should have a formal written leave policy in place. Employees need to have access to a copy of the policy and an understanding of the content through training and regular reminders/updates.

The policy should outline that the employee is required to always contact their manager or supervisor directly by telephone to report the absence. This means the employee must explain the absence directly to a more senior person who is accountable for managing leave.

Do not allow an employee to notify of their absence by:

• contacting a peer/co-worker or secretary
• sending an email to work
• sending a text message.

These forms of contact do not provide the manager or supervisor the opportunity to assess whether or not the absence is genuine.

If an employee does not notify the required person in accordance with the policy, the manager or supervisor should contact the employee by telephone and have a direct discussion to be satisfied that the absence is genuine.

Providing proof of illness

The Fair Work Act (FW Act) stipulates that an employee must provide evidence ”that would satisfy a reasonable person” when accessing a personal/carer’s leave entitlement. This may include the following:

• a medical certificate from a registered medical practitioner if it is reasonably practicable to do so
• if it is not reasonably practicable for the employee to give a medical certificate – a statutory declaration made by the employee
• any other form of evidence that would be seen to comply with the evidence ‘that would satisfy a reasonable person’.

As the reference to “evidence that would satisfy a reasonable person” is open to interpretation, it is recommended that employers specify the evidence they consider appropriate in their policy.

Such requirement should then be enforceable provided that it is in fact reasonable. For example, the employer may have a policy which requests that any absences greater than one day, or any absences following a weekend or a public holiday, must be confirmed with a medical certificate.

Where an employee takes frequent personal leave the employer may also wish to consider:

• seeking the employee’s permission to speak to the medical practitioner about their absence
• requesting the employee participate in a review by a medical practitioner of the employer’s choice. Should an employer request an employee to attend such a review this should be undertaken during the employee’s ordinary hours of work and the cost should be covered by the employer.

Compliance with a leave policy

Employers need to ensure that all employees are fully aware and understand the content of their leave policy. This then gives the employer the ability to performance manage an employee who fails to comply with a ‘reasonable’ leave policy.

However, employers should not performance manage or terminate an employee for accessing their statutory right to personal/carer’s leave if an employee is able to meet the evidence requirements as outlined in a ‘reasonable policy’ or under the FW Act when accessing personal/carer’s leave.

Employees have a ‘workplace right’ to use this entitlement and depriving them of this right leaves an organisation open to a risk of a General Protections claim by an employee. In addition, terminating an employee for accessing personal/carer’s leave would not constitute a ‘valid reason’ for the purposes of protection from unfair dismissal claims.

General Protections claims can result in uncapped penalties being awarded to the employee and potential fines for employers of up $63,000 and for individuals of up to $12,600 for breaching the FW Act. Alternatively, unfair dismissal claims can result in re-instatement or compensation up to a maximum of $72,700.

Managing long term absences

The FW Act specifically protects an employee from being terminated due to a temporary absence because of illness or injury. An employee is protected under this provision for a prescribed kind of illness or injury whereby an employee provides a medical certificate or statutory declaration about the illness or injury. An illness or injury in not a prescribed kind of illness or injury if:

• the absence extends for more than 3 months
• the total absences of the employee, within a 12 month period, have been more than 3 months (whether based on a single illness or injury or separate illnesses or injuries)
• the employee is not on paid personal/carer's leave.

If an employer is not aware of this and terminates an employee who is protected under a temporary absence, a successful claim may result in uncapped penalties being awarded to the employee and the employer can be fined up $63,000 per offence.

Employers should also be aware that terminating an employee who is not protected under a temporary absence clause is not risk free. Employees may still have access to other forms of claims, such as unfair dismissal or a discrimination claim under State and/or Federal Discrimination legislation.

Employers should contact the Employee Relations Advice Centre on (08) 9365 7660 for advice prior to terminating an employee on long term absence.

Returning to work

When an employee returns to work after an absence, the employer should always have a discussion with the employee about the absence.

The level of discussion may range from a simple passing comment to a counselling/disciplinary interview depending on the situation.

Often implementing these simple steps sends a message to an employee that an employer is concerned about the wellbeing of an employee and is also serious regarding the management of absence.

For further information about managing workplace absences contact the CCI Employee Relations Advice Centre on (08) 9365 7660 or email advice@cciwa.com.