Employers must be mindful of the legal consequences that may occur if they terminate an employee on the basis of excessive absenteeism.
Under the Fair Work Act 2009 (Cth) an employee whose employment has been terminated on the grounds of excessive use of sick leave may bring a claim alleging unfair dismissal, discrimination or adverse action.
An employer is in breach of the Fair Work Act if an employee is terminated on account of the employee being temporarily absent from work due to a prescribed kind of illness or injury.
However, it is not a prescribed kind of illness or injury if the illness or injury extends for more than three months or the total absences of the employee within a 12-month period have been more than three months and the employee is not on personal/carer’s leave for the duration of the absence.
Employers can minimise their risk of legal action by adopting a policy for dealing with absenteeism. A well-defined policy will explain the processes for taking sick leave and what will happen in cases of excessive sick leave. The policy should clearly state where medical evidence, such as a medical certificate, is needed and the consequences for misuse of sick days.
If you find certain employees are taking frequent sick days, it may be a good idea to have a chat to them about what is going on and if necessary, offer flexible working arrangements. Be sure to address employees who have established a pattern of taking particular days off, such as Mondays or Fridays, to let them know you have noticed their behaviour and it is putting pressure on your business.
Even if you do have the grounds to terminate an employee for excessive sick leave, it is a good idea to obtain professional advice before taking any steps to terminate an employee as many legal ramifications may still arise.