Frequent or prolonged absences due to stress, illness, injury or
other personal reasons can be a major cause of frustration for
employers. However, there are significant risks associated with
taking punitive measures against employees who may be genuinely
unwell, illustrated in several recent decisions.
In our experience, approaching the issue from the perspective of
understanding the employee's condition, and assisting them to
return to normal duties, can help the employer drive a long-term
resolution of the issue, rather than approaching absenteeism as a
disciplinary matter. This applies even when the employer suspects
that an employee is "gaming the system", and their stated
reasons for absence are not genuine.
Employees are far more likely to co-operate and share
information about their condition if they feel they are being
supported. This information can be vital to help managers make
decisions about workforce planning, and for discussions with the
employee about any reasonable adjustments that could be made to
their role. The primary driver when seeking to address absenteeism
issues should be finding out the reason for the absence, and
finding a way to get the employee back to work if at all
This collaborative approach could alleviate some of the
difficulties seen in a
recent case in the Federal Circuit Court of
Australia where a manager directed an absent employee to
allow him to speak with her treating doctor. The manager sent an
email to the employee, implying that a failure to agree could
result in termination of employment. The Court was critical of the
manager's approach, found the direction unreasonable in the
circumstances and found that the employer's reason for asking
to speak with the doctor was for the purposes of disciplinary
action, rather than assisting the employee to return to work.
But this doesn't mean that talking to an employee's
treating doctor is completely off limits. It can still be a helpful
measure in understanding the reasons for absenteeism and the
employee's condition, and managing a return to work – the
key is having a discussion with the employee first, and getting
their permission. If the employee understands why the employer
wants to speak with their doctor, and the types of questions the
employer wants to ask the treating doctor, they may be more likely
Of course, not every case of absenteeism will be for genuine
reasons and, if this can be established, then a disciplinary
approach may be appropriate. The approach outlined above should
help to establish whether or not the employee is absent for genuine
reasons and, if the absenteeism is not genuine, support the taking
of disciplinary action if it becomes necessary.
For HR practitioners and managers, this may involve a change of
mindset in approaching issues of absenteeism but one that we think
has the potential to produce positive benefits.
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
When employees engage in out-of-hours misconduct, it can negatively affect the reputation of the employer.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).