Some employees hardly take any personal leave, and continue to
accrue their personal leave days from year to year. On the other
end of the spectrum, you have employees who appear to take vast
amounts of sick leave, and often in excess of the statutory minimum
of 10 days of paid personal leave per year.
Most employers have policies in place that stipulate the
procedure to be followed by an employee when they're taking a
personal leave day. Often this procedure involves notifying a
supervisor or manager before the start of the day or shift, of the
fact that the employee will be absent from work, and requires the
provision of a doctor's certificate to substantiate the
illness, in order for it to be paid leave.
In some situations, an employee is absent quite frequently, and
may not comply strictly with the policies and procedures in place.
If this happens, is an employer able to terminate the
employee's employment for repeated absenteeism?
As a starting point, it is typically unlawful to treat an
employee adversely (for example, by terminating their employment)
solely because they are suffering from an illness or because they
have sustained an injury. However, employers are legitimately
entitled to expect that an employee will be present at work to
perform the role for which they have been hired. If an employee is
absent frequently, the absence can put a strain on resources and
increase the workload of other team members - so in those
circumstances, what is the procedure to follow in order to address
The first step is to ensure that you are consistently enforcing
your internal policies. That means, chasing up doctor's
certificates and if necessary, warning employees that a consistent
breach of the absentee policy could result in disciplinary action,
including termination of employment.
The next step is to put the concern to the employee, and
importantly, provide them with an opportunity to respond. The
importance of this step was recently illustrated in the case of
King v D.C Lee & L.J Lyons where Ms King, an associate at law
firm Lee & Lyons, was terminated for, amongst other things,
frequent absences from work.
Ms King's direct report and the HR Manager had both been
previously informed of the fact that Ms King was a victim of
domestic violence. The day before Ms King was dismissed, she was
required to attend court for the domestic violence matter, and she
notified the HR Manager of this, and that the court matter would
likely finish at about 11:00am. That evening, Ms King was informed
that it was unlikely that the court matter would be heard before
12:00pm. Ms King did not notify the HR Manager or her direct report
that she wouldn't be back in the office by 11:00am.
On the day of her dismissal, Ms King attended work at about
8:45am and left at 10:00am for court. She returned to the office at
2:15pm. On her return, she was summoned to the boardroom where the
HR Manager, and the partners, Mr Lee and Ms Lyons were waiting. Ms
King was then told that Mr Lee and Ms Lyons had decided to
terminate her employment, effective immediately.
Later that day, Ms King sent Mr Lee and Ms Lyons an email,
explaining her absence and urging them to reconsider their decision
to terminate her employment. They did not.
Commissioner Johns of the Fair Work Commission determined that
the employer's reaction was "harsh and disproportionate to
the gravity of the misconduct," despite finding that the
failure to notify her employer of the delay in her court matter,
was, given her previous warnings in relation to unexplained
absences and tardiness, a valid reason for the termination of her
In reaching the conclusion that her termination was nonetheless
harsh, unjust or unreasonable, the Commissioner took into account
the fact that Ms King was not provided an opportunity to respond
and the consequence for her, being the loss of her employment, was
harsh and disproportionate to the gravity of the misconduct. Ms
King was awarded $11,064.28 as compensation.
Each case must turn on its own set of facts: sometimes
termination is justified, other times it is not. Either way, to
reach that conclusion, due process must be followed to ensure
fairness to all involved.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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