So one of your workers is taking too many sick days.

Unfortunately, imposing disciplinary action on an employee for taking sick days can get you in trouble as an employer.

Here are some ideas to help you deal with a regularly absent employee, who you suspect is abusing their entitlement to sick leave.

Set a Clear Policy

Make all employees aware of the appropriate use of sick days. In particular, let them know what the consequences for the abuse of sick days actually are. Make sure that such misuse will not be tolerated in your workplace.

Negotiate

The key message here is that sacking a person for taking too many sick days is probably going to place you in contention with employment laws.

First, sit down and have a chat with your employee. Try and work out what is going on. Is there a medical problem here which needs to be addressed? Is there something in the workplace which might be bothering them? Are they okay? Are they being bullied by another staff member?

Offer flexible work arrangements if you can. If this is not suitable, make it clear that you are concerned about their absences and advise them of the impact on their performance. You want to flag the issue with them and let them know that their job might be in jeopardy if the behaviour continues.

Be Frank

Explain why it’s important for the employee to be at work on certain days and that reliability is an implied part of their employment contract. Tell them how crucial they are to the operation of the business and that they simply cannot continue working at your business with such a high rate of unplanned absences.

If you keep track of when a person is absent, you can make it clear that you’ve become aware that for instance, they keep having Mondays or Fridays off and that this is beginning to look suspicious.

Ask For Medical Evidence

You can ask your employees to give you evidence about why they took a sick day – a medical certificate or statutory declaration is usually the most appropriate form of evidence.

If your employee can’t give you any evidence, then legally you may not have to pay them for the sick day.

Be Wary of Unfair Dismissal Laws

Under the Fair Work Act 2009, an employer is not allowed to dismiss an employee if the employee is temporarily absent from work because of illness or injury. You may be liable to serious civil penalties if you sack someone just for taking sick days over a short period of time.

There are, however, limits to this rule. If an employee takes extended periods of time off work and in particular, if they exhaust their sick leave, then depending on the circumstances you may have a reasonable case for dismissing that employee.

In any case, you need to give them a chance to improve, let them put their side of the story to you and make it clear their behaviour is putting a strain on the business before you consider making this move.

Be Wary of Disability Discrimination

If your worker has a recognised disability and you sack them for taking too many sick days you may also be liable under discrimination laws.  Recognised disabilities include:

Mental disorders / psychiatric disabilities: such as depression and sleep disorders.

Physical disabilities: such as asthma, MS, cerebral palsy or epilepsy; musculoskeletal disorders such as arthritis or spinal injuries; as well as people with other diseases such as cancer.

Understand How Much Sick-Leave Employees are Entitled To

All full-time employees except casuals are entitled to a minimum of 10 days paid sick leave per year.

In addition, all employees (including casuals) are entitled to two days unpaid leave for each occasion to look after sick family members.

Key Takeaways

You cannot dismiss an employee if they are taking leave within their rights. If they start going beyond their entitlements, you may be able to consider disciplinary action. First, however, you should try a softer and more measured approach, as this is definitely your better, cheaper and more amicable option. For legal advice and assistance from one of our employment lawyers, call LegalVision on 1300 544 755.

Emma Jervis

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