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Absenteeism
If an employee injures themselves on their own time (knee injury) and then as a result is unable to fulfill their duties at work as a result – what are our legal rights? Can we terminate him on the basis that he is unable to perform his duties and if so, what process would we follow? I am guessing it would be slightly different then the ‘opportunity to improve’ type scenario with letters of warning.
You must be extremely careful when terminating an employee who is sick or injured. However, if they are unable to perform the inherent requirements of the role, you may have grounds for termination.
To determine the inherent requirements of a role, consider:
- The terms of any employment contract;
- The job description;
- The actual physical and mental tasks performed; and
- The nature of your business.
Even if the employee cannot meet the inherent requirements, where possible and reasonably practicable you must make an effort to accommodate the employee by temporarily altering their role or implementing changes to help the employee during their time of illness/injury.
Therefore, dismissal on the grounds of incapacity is permitted if the incapacity prevents the employee from meeting the inherent requirements of the role and nothing you can reasonably do will enable the employee to meet those requirements. If this is the case, you must consult with the employee and give them every opportunity to provide relevant information about their capacity, and you must satisfy yourselves that you have enough evidence to prove that the dismissal is not unduly harsh when considering the employee’s length of service, employment history and the impact of the dismissal on him/her compared with the impact on your business.
Despite the above, the FW Act allows a dismissal of an employee if they are absent from work for 3 consecutive months, or 3 months in a 12 month period. However, during this period there should be reasonable consultation with the employee regarding their injury and position, including notifying them of the possibility of dismissal based on their absence for the required period.
What strategies can I use to improve employee attendance?
Depending on the cause of the absence, you can try to make the job more engaging (please see our section on Retention), address any workplace concerns they might have (e.g. see people development section for tips), and where necessary, you can potentially take disciplinary action against employees who consistently fail to present for work without a lawful excuse/do not comply with appropriate policies/procedures (please see our managing underperformance and discipline resources under the people development section).
Who’s responsible for dealing with absenteeism?
Often lawyers can get involved to help manage absenteeism by:
- Disciplining employees for not following applicable rules when they take personal/carer’s leave
- Disciplining employees taking personal/carer’s leave because the condition for exercising the right to take the leave did not exist (e.g. the employee took sick leave when he/she was not actually unfit for work due to illness or injury), or
- Managing the causes of the absenteeism (e.g. disability or impairment) consistent with legal requirements.
However, lawyers will not give you solutions to excessive absenteeism. This can only be achieved through affective human resource management.
Some of the solutions suggested include:
- Building good relationships, respect and trust between management and employees, which includes effectively dealing with underperformers and rewarding those behaviours that are desired
- Affording flexibility with working hours, the ability to work from home and varied leave options, which focus on work effectiveness rather than time worked
- Measures which achieve proper balance in work and personal lives, e.g. part time, flexi-time, staggered working hours etc.
- Reducing generous overtime provisions which may entice employees to call in sick on the days that they do not get paid overtime, whilst working those where they do
Do you have an absenteeism problem?
Collecting data on the patterns of employee absence is essential to determining whether absenteeism is a problem in your workplace. Monitoring absence trends can assist you to:
- Identify if you have a problem with absence levels in your workplace
- Categorize the type of absence that usually occurs in your workplace, e.g. Monday ‘sickies’ or cases of longer-term sickness, and
- Highlight patterns in employee absence levels, e.g. are absence levels higher in one particular team or at a specific time of year?
We have an employee who is quite sick and has a medical certificate covering them for the whole week, however, the employee is choosing to attend work against the doctor’s advice. What are my obligations?
There may be exposure for an employer where they allow an employee to continue working whilst unfit for work, and particularly where they are covered by a medical certificate for the period. In this circumstance it would be prudent to advise the employee to return home for the remainder of the period, or to re-visit their doctor for a re-assessment if they believe their condition has improved and they are fit for work. An employer may consider paying for the costs of this re-assessment.
What does ‘inherent requirements of the job’ actually mean?
Assessing the ‘inherent requirements of the job’ involves an objective test as to what is actually required of that position. In the High Court case of X v The Commonwealth [1999] HCA 63, it was held that inherent requirements of a job means the essential elements of the job which does not typically include remote or peripheral tasks. This is not limited to physical ability or skill of an employee, and the assessment should contemplate the way the job is performed as well as terms of appointment. In this sense, position descriptions, contracts of employment and the nature of the business are particularly useful to determine the inherent requirements.
