Has one of your workers been taking too many sick days? Absent employees can cost your business money and affect your overall productivity. But imposing disciplinary action on an employee for taking sick days can get you in trouble as an employer.

If you are wondering how to deal with an employee who may be abusing their entitlement to sick leave, we set out seven strategies you can put in place to deal with the issue. 

1. Know Your Obligations

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.

2. Set a Clear Policy

Have a clear workplace policy in place that details the appropriate use of sick day entitlements. For example, you may require an employee to provide appropriate evidence for their leave, such as a medical certificate or statutory declaration.

The workplace policy should also alert employees to the consequences for the abuse of sick days. So if your employee does not provide you with a doctor’s certificate, you may not have to pay them for the sick day. Make it clear that you will not tolerate such misuse in your workplace.

3. Talk to Your Employee

If an employee is taking several sick days, sit down and have a chat with them. Try and work out if there is an underlying issue that you should be aware of, or that you can help with. Do they have a medical problem that needs to be addressed? Is there something in the workplace which might be bothering them? Are they being bullied by another staff member?

You can also use this opportunity to clarify why it is important for the employee to be at work on certain days and that reliability is an implied part of their employment contract. Gently explain that you are aware of their absences and that their job might be in jeopardy if the behaviour unreasonably continues.

Depending on the circumstances and the outcome of this meeting, you may then choose to offer flexible work arrangements. If this is not suitable, make it clear that you are concerned about their absences and advise them of the impact on their performance.

4. Understand 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 for serious civil penalties if you sack someone just for taking sick days over a short period of time.

However, there are limits to this rule. You may have a reasonable case for dismissing an employee if they:

  • take extended periods of time off work; or
  • exhaust their sick leave.

In any case, you must first make it clear their behaviour is putting a strain on the business. You need to give them a chance to improve and let them state their side of the story to you.

5. 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; and
  • physical disabilities, such as:
    • asthma;
    • multiple sclerosis;
    • cerebral palsy or epilepsy;
    • musculoskeletal disorders such as arthritis or spinal injuries; and
    • other diseases.

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. But you should always try a softer and more measured approach to begin with. This is a better, cheaper and more amicable option.

If you need legal advice and assistance regarding an employee absences, call LegalVision’s employment lawyers on 1300 544 755 or fill out the form on this page.

About LegalVision: LegalVision is a tech-driven, full-service commercial law firm that uses technology to deliver a faster, better quality and more cost-effective client experience.
Emma Jervis

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