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The 2012 Olympics commenced on 30 July 2012 in London to the
delight of sports fans across the globe. This week we watched as
Olympics fever gripped Australia, but the Games may prove to be a
headache for some employers.
With events scheduled at different times throughout the
Olympics, employees may seek time off to view games that coincide
with their working hours or, as a result of the time difference
between Australia and London, may fail to turn up to work at all or
perform their duty in the required manner after missing out on a
good night's sleep.
Employers should be prepared to manage potential staff issues
that may arise. Clear communication with employees about what is
expected of them will assist in the effective management of
potential issues.
Below are some of the strategies employers should consider to
avoid high levels of unauthorised absence during the Olympics.
Flexible working arrangements
Some employers will receive requests from employees to take time
off to watch the Olympics. One option is to provide flexibility,
including allowing employees to take the relevant days (or
half-days) off as part of their annual leave entitlement, or
operating a flexible working system on days when there are key
events. Alternatively, employers may wish to allow employees to
listen to an event on the radio or watch it on a television or on a
computer at work, implement flexible start or finish times, extend
break times, or allow employees to swap shifts or take unpaid
leave.
Not all employees may be supporting the Australian team.
Therefore, any flexibility offered to the Australian team
supporters may need to be extended to employees who are following a
different team. This may avoid discrimination claims on the grounds
of race or nationality.
Managing sickness absence
Where an employer suspects personal leave is being used to watch
the Olympics, employers need to address it promptly, noting the
notice and evidence requirements regarding the taking of
personal/carer's leave set out in the Fair Work Act
2009 (Cth) (FW Act) or in accordance with the employee's
contract of employment or other workplace policy. Abuse of personal
leave in these circumstances may entitle the employer to instigate
disciplinary action against the employee.
Employers cannot take disciplinary action if they are merely
suspicious of the real reason for the leave. There must be some
evidence of it, for example, if the employee told other employees
they were absent to watch the Olympics.
DLA Piper Olympics Survey
We conducted a survey through social media of human resources
and other professionals to gauge the impact of this major sporting
event on their workforce. The survey considered the extent to which
businesses are willing to offer flexibility to employees to watch
events, and whether businesses are applying their policies or
issuing guidance to staff in advance of the Olympics as a way of
managing potential issues such as unauthorised absence, increased
internet usage and racial banter.
40% of respondents to the survey said that they were planning to
offer some flexibility for employees to watch the Olympics. Of
those businesses that would consider flexible working
practices:
The provision of unpaid time off was the most popular option
(just under 70% of respondents planned to offer this)
One-third of respondents were in favour of allowing employees
to swap shifts or come in late/leave early.
The survey responses show that employers are considering
creative ways of allowing employees to watch the Olympics, as a
mechanism to avoid the necessity to instigate disciplinary action
against an employee for malingering or using personal/carer's
leave in an unauthorised manner. An overwhelming 70% of respondents
said that they would consider disciplinary action for abuse of
personal/carer's leave or lateness for work (without the
employer's consent) during the Olympics.
Methodology
The survey was conducted through LinkedIn and Twitter for 10
days from Friday 20 July 2012. All surveys were completed online
and anonymously.
This publication is intended as a general overview and
discussion of the subjects dealt with. It is not intended to be,
and should not used as, a substitute for taking legal advice in any
specific situation. DLA Piper Australia will accept no
responsibility for any actions taken or not taken on the basis of
this publication.
DLA Piper Australia is part of DLA Piper, a global law firm,
operating through various separate and distinct legal entities. For
further information, please refer to www.dlapiper.com
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A court has determined that an employee had a workplace right under the Fair Work Act 2009 to make a complaint entitling the employee to proceed with her general protections claim.
