Summary
- Employers in Australia can manage excessive sick leave through performance or conduct processes, but must follow fair and lawful procedures to avoid unfair dismissal claims.
- Genuine illness is protected under the Fair Work Act 2009, meaning employees cannot be dismissed solely for taking personal leave they are entitled to.
- Employers may request evidence, such as a medical certificate, to verify absences, and repeated unverified absences may form grounds for disciplinary action.
- This article is a plain-English guide for Australian business owners on managing employees who take excessive sick leave, prepared by LegalVision, a commercial law firm.
- LegalVision specialises in advising clients on employment law and workplace obligations.
Tips for Businesses
Request medical certificates for absences, keep clear records of patterns, and address concerns through a formal process. Review your employment contracts and workplace policies to ensure they set out your expectations around sick leave. Treat each situation individually, as circumstances will vary between employees.
Employee absenteeism due to illness or injury presents real challenges for businesses, affecting both productivity and costs. Managing it poorly, however, can expose employers to significant legal risk. This article will explain suggested strategies on how to deal with employees who are absent from work due to illness or injury, as well as the associated risks.
1. Know Your Obligations
All full-time employees (except casuals) are entitled to a minimum of ten days paid personal/carer’s leave per year. This leave accrues progressively throughout the year and accumulates each year. Your employees can use this leave when:
- they are not fit to work due to a personal illness or injury; and
- they are providing care or support to a member of their immediate family or household because of an illness, injury or unexpected emergency affecting the person.
Part-time employees are entitled to paid personal/carers leave on a pro-rata basis. In addition, all employees are entitled to two days of unpaid leave for each occasion where they need to care for or support a member of their immediate family or household.
2. Set a Clear Policy
Having a well-defined workplace policy regarding the use of personal/carer’s leave may be beneficial for employers. This policy should clearly outline the:
- conditions for taking this leave; and
- any notification requirements.
Moreover, it should specify whether the employee needs to provide any supporting evidence, such as a medical certificate or statutory declaration, to justify their absence.
A comprehensive and transparent policy on personal/carer’s leave can help maintain a fair and consistent approach to managing employee absences and ensure that everyone is on the same page. Sometimes, employees may take advantage of long weekends by taking additional leave either on a Monday or Friday or by extending their annual leave. To prevent this, you can establish guidelines that require employees to provide evidence when taking sick leave on certain days or during specific periods.
3. Talk to Your Employee
If an employee takes several days off due to illness, holding an informal discussion with them is advisable. This conversation aims to determine whether any underlying issues require attention or assistance from the organization. For example, do they have a medical problem that your business needs to address? If so, what can your business do to support them?
As an employer, understand your essential employment obligations with this free LegalVision factsheet.
4. Reasonable Adjustments
If an employee has disclosed that they have sustained an injury or illness that prevents them from fulfilling all of their work duties and responsibilities, it is your responsibility to explore possible reasonable adjustments that can be made to assist the employee. The reasonable adjustments can include options such as:
- job sharing;
- allowing a part-time return to work;
- making physical modifications to the workplace; and
- procuring specialised equipment to facilitate their work.
An adjustment will not be considered reasonable if it causes your business unjustifiable hardship. If you have made reasonable attempts to make adjustments for them and they are still unable to perform the inherent requirements of their job, then this may provide a valid reason for dismissal. However, this is not a straightforward issue, and we strongly recommend seeking legal advice before pursuing this course of action.
5. Dismissal
Attempting to dismiss an employee who has been absent from work due to a prolonged illness or injury is not a simple matter. You may consider dismissing the employee if they cannot perform the inherent requirements of the role, even after you have made reasonable adjustments to it.
Before considering the process concerning a dismissal, you need to be aware of the protections that exist for employees. Likewise, make a note of the risks to you as an employer. There are protections in place for employees who are dismissed on the grounds of illness, injury or disability. Such protections are within legislation such as the Fair Work Act 2009 (the Act), state and federal discrimination legislation, and workers’ compensation legislation.
General Protections Claim
Further, if an employee takes personal leave while you are managing existing misconduct or performance issues, you should be cautious in proceeding with dismissal. Dismissing an employee on sick leave may lead to them bringing a claim under the general protections provisions, which prohibit dismissal because of an:
- illness or injury; or
- an employee taking personal leave.
Even where the employee’s illness and absence are not the reason for dismissal, these circumstances inherently increase risk. Where a general protection claim is successful, you may be:
- ordered to pay the employee compensation; and
- the subject of financial penalties.
This underlines the importance of understanding the legal implications and limitations of dismissing an employee on sick leave.
6. Other Protections
Anti-discrimination and disability discrimination legislation similarly prohibits discrimination against an employee based on any disabilities. This includes circumstances where you terminate an employee from your business.
In addition, each state’s workers’ compensation legislation also prohibits you from dismissing an employee within a specific timeframe after a workplace injury occurs. This applies if the worker is receiving workers’ compensation. Each state also has return-to-work provisions regarding the employer’s obligations with respect to facilitating the employee’s return to the workplace.
Key Takeaways
Generally, an inability to perform the inherent employment requirements may provide a valid reason for dismissal. However, several risks are involved where your employee has been absent from work on personal leave or carer’s leave. If you are considering dismissing an employee for taking too many absences, you should check all relevant legislation and seek advice from an employer lawyer before doing so.
LegalVision provides ongoing legal support for businesses through our fixed-fee legal membership. Our experienced employment lawyers help businesses manage contracts, employment law, disputes, intellectual property, and more, with unlimited access to specialist lawyers for a fixed monthly fee. To learn more about LegalVision’s legal membership, call 1300 544 755 or visit our membership page.
Frequently Asked Questions
All full-time employees (except casuals) must receive ten days of paid personal/carer’s leave per year. In addition, all employees (including casuals) must receive two days unpaid leave for each occasion to look after sick family members.
Casuals only have an entitlement to two days of unpaid leave for each occasion to look after sick family members.
Reasonable adjustments include job sharing, part-time return-to-work arrangements, physical workplace modifications, or specialised equipment. However, adjustments that cause your business unjustifiable hardship are not considered reasonable.
Yes, but proceed cautiously. Dismissing an employee who takes personal leave during misconduct or performance management may trigger a general protections claim under the Fair Work Act 2009, potentially resulting in compensation orders or financial penalties against your business.
We appreciate your feedback – your submission has been successfully received.
