RECENT COURT rulings make it clear that employers must go through a fair process before they can dismiss an employee for absenteeism, according to a national law firm.
Even if an employee is continuously absent due to illness or injury for up to three months or for three months within a 12 month period, it is unlawful to sack that person on grounds of the absence.
“If the employee can’t continue to do the job, then the employer has to go through a fair process establishing that this is the case and involve the employee in the process,” said David Davies, workplace relations partner at Sparke Helmore.
It is also important to remember that an employee who is dismissed because they have a disability may be able to take action under federal or state legislation.
Nor is it just schools that won’t tolerate bullying. If there is any indication that an employee is absent because they are being harassed or bullied at work, Davies said, the onus is on the employer to thoroughly investigate and manage the issue.
“However, if an employee is repeatedly or continuously absent without a reasonable explanation, and the employer follows a fair process, termination will most likely be upheld.”
Davies said employers keen to manage absenteeism should: have a specific absenteeism policy; investigate the reason for repeated absenteeism; take action to address the issue, if possible and appropriate; and have a fair process in place to deal with the issue if there is no reasonable explanation; or if the absence is due to medical reasons, consider responsibilities as a fitness for duty matter.
“Even though you might be managing a team with tight budgets, tight deadlines and a hundred other different issues on any given day and becoming increasingly frustrated with an employee who is repeatedly or continuously absent, you can’t just sack that person,” said Davies.
First of all, he recommended employers work out why the person is absent and establish processes for dealing with their absence.
“Employers have to implement a fair process. If an employee is absent because of a workplace issue, the onus is on the employer to fix it,” he said.
“Termination of employment will only be upheld where employers demonstrate that they have a clear and fair process in place.”
Craig Donaldson is the Editor of Human Resourcesmagazine, Lawyers Weekly’s sister publication
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