Some employees hardly take any personal leave, and continue to accrue their personal leave days each year. However, on the other end of the spectrum, some employees appear to take vast amounts of sick leave, and often in excess of the statutory minimum of 10 days paid personal leave each year. Interestingly and possibly not surprising, a recent workplace investigation found that about 50% of all unplanned absenteeism was not medically related and costs businesses a staggering $33 billion annually. In this regard, the difficulty faced by employers is the ability to identify the reasons for sick leave, address any issues that may be a relevant factor in an employee taking “serial sickies” and dealing with the issue in an effective manner.
Frequent and unplanned absenteeism affects business through reduced productivity, low morale, temporary staff covering absent employees, increased workloads, poor quality of work, increase in overtime costs, and loss of time due to managing absenteeism, reallocating work and finding replacement staff. It is for these reasons that it is important that employers manage sick leave and ensure that any repetitive amounts of sick leave do not actually represent a bigger issue for the business.
What employers can do to manage absenteeism?
Workplace absenteeism can usually be addressed by a well-planned and implemented cultural change. The first step is to identify why employees are taking excessive sick leave and if it is a rampant problem, focus on the factors within the environment that may be causing employees to behave in this manner. An engaged a responsive workplace is far less likely to have a culture of excessive sick leave takers.
We also encourage employers to identify any cause or trends associated with the workplace for an absenteeism culture. An absenteeism culture may be the result of, for example, a lack of employee motivation, stressful and heavy workloads or conflict within a team. Employers may consider ways of revitalising the workplace through an incentive system, providing social or sporting events, engaging in team building workshops, updating tools or resources to assist employees in completing their job effectively and/or offering new opportunities for professional career development.
Like any recurring problem, the solution lies in being consistent and having clear communication and set expectations. Firstly, it is vital for employers to develop a simple and effective system that is consistently and firmly applied to all employees. This can be achieved through the introduction of a workplace leave policy setting out the expectations, procedures and notice requirements for taking leave. If a situation arises where an employer has concerns about an employee taking repetitive sick leave then the employer should first consult with the employee and allow the employee time to respond and discuss the concern. There may be a number of different reasons why an employee may be taking repetitive sick leave including problems with transport, personal causes such as domestic violence, family issues and/or a more serious health concern. Through open communication and consultation with the employee the concern can be addressed in a manner that fosters a positive and professional relationship.
Repeated absenteeism without a proper basis is clearly a performance and conduct issue which should be addressed. However, it may be difficult to establish that in fact employees who habitually take sick leave are not in fact sick or suffering a medical or personal matter that validly allows the individual to take the leave. If an employer is in doubt regarding the validity of the leave or the doctor’s certificate, and they have a reasonable basis for this belief, it is open to the employer to seek further information from the employee or even the doctor who has provided the medical certificate.
Is an employer able to terminate for repeated absenteeism?
The starting point is that it is unlawful to treat an employee adversely (including terminating their employment) solely because they are suffering from an illness or because they have sustained an injury, or that they are on a period of personal leave as a result of illness or injury. However, an employer is entitled to expect that an employee will be present at work to perform the role for which they were hired. In this regard, there are some circumstances in which an employer may discipline, and in some cases dismiss, an employee for reasons relating to the employee perpetually taking sick leave. These include the following:
- If an employee consistently breaches the employer’s leave policy (such as not providing medical certificates or notifying a supervisor of their absence) and the employee has been provided warnings advising that further breaches of this kind may result in disciplinary action including possible dismissal;
- If an employee cannot fulfil the inherent requirements of their position. However, the employer will still need to follow a procedurally fair process in terms of managing a sick or injured employee including consultation with the employee and confirm, by way of medical opinion, that the employee is in fact unable to fulfil the requirements of the position. Furthermore, the employer can only make these decisions where the employee has been on leave for an extended period; or
- If there are real grounds for disputing that the employee is actually unfit for work (such as the employee calling in sick but really is on a vacation) then the employer may seek further clarification from the employee and ultimately discipline an employee where the information clearly demonstrates that the employee did not have the right to paid sick leave. Given the seriousness of such an allegation, the employer must have cogent evidence that the employee is not unfit for work or lied about the reasons for taking leave.
There are risks associated with dismissing an employee or taking other disciplinary action in relation to an absence from work due to an illness or injury. An employee exercising their right to take paid personal leave is protected under the Fair Work Act 2009 (Cth) from being subjected to adverse action by their employer because they are exercising a right or intending to exercise this right.
The Federal Circuit court’s decision of Collison v Brighton Road Enterprises Pty Ltd  FCCA 186 is a reminder that employers must tread carefully when dealing with employees who are on sick leave or who are returning from sick leave.
In this particular case, an events manager, Ms Collison, took sick leave after being reprimanded by the director for booking a large function in the lead up to the AFL grand final. Specifically, the director said words to the effect “I can’t do my effing job and yours as well.”
Despite Ms Collison’s repeated requests for further training, the events manager claimed that the director had told her to rethink her career path. Ms Collison was quite distressed and as a result attended her GP for advice on how to manage her anxiety. The GP provided her a medical certificate recommending one week’s sick leave.
Upon telling the director of the leave and informing him it was related to anxiety and stress as a result of work, he responded in an email titled “without prejudice” and stated he was “sorry to hear of this development, as recent as it is; particularly given there were no signs of this when you left work”.
The director’s email allegedly further aggravated the event manager’s distress as she feared she was in trouble and would be treated worse upon her return. Ms Collison returned to her GP where she was advised to take an additional week off work due to her symptoms.
Ms Collison informed the director by email of her further period of leave and couldn’t say when she was likely to return. Within 10 minutes of sending the email, the director replied advising that her paid sick leave had been exhausted and any workers compensation claim is likely to be rejected although he specifically noted he was not attempting to discourage her from making such a claim. He also requested that he be granted authority to speak with her GP for more details about her medical condition and asserted that he required these details to facilitate her return. The director’s email also warned that if she failed to follow the requests, disciplinary action including dismissal would be taken.
Ms Collison did not want her medical history made available because her anxiety had been triggered by an alleged sexual harassment in the workplace by another colleague and then exacerbated by the director’s conduct. As such, Ms Collison engaged a lawyer who responded on her behalf stating that she would not be returning to work until further notice.
On the following day, the director responded to the email stating the lawyer’s response was highly unsatisfactory and the event manager’s failure to help with her return to work provided grounds for dismissal which he elected to effect immediately. The director further stated that as a gesture, the company would re-employ the event manager if she provided satisfactory medical information about her capacity to return to work.
In considering the above, Judge Jones found that the substantial and operative reasons for the event manager’s dismissal was the exercising of her workplace rights, including accessing her entitlements to paid sick leave, pursuing a workers’ compensation claim and making inquiries about her employment. Judge Jones understood that the employer wanted certainty about when the events manager would return, however she did not accept that this reasoning explained the director’s demand to speak to the GP and that a failure to do so would jeopardise Ms Collison’s employment. Further the Court found that delivering an instruction to an employee who was absent on sick leave and requesting to speak to her treating GP was unreasonable and perhaps “heavy handed”. Her Honour also found the offer of re-employment to be disingenuous. As a result, the Company was ordered to pay Ms Collison $35,000 and the director was personally ordered to pay her $7,000.
This case clearly demonstrates the carefulness with which employers need to act when dealing with an employee on medically certified leave, but should not discourage business-owners from making genuine inquiries regarding the taking of such leave in circumstances where the absence is improper or the employer has grounds to believe the leave is being taken other than for bona fide reasons. In such circumstances, we recommend employers seek legal advice.
If you wish to discuss any aspect of this article or require specialist advice or assistance in relation to your employment relations framework including updating your leave policies, please do not hesitate to contact us.
This alert is not intended to constitute, and should not be treated as, legal advice.