Employees will undoubtedly get sick – that’s just a part of life. But what do you do when an employee of your business takes sick day after sick day? In this article, the steps to figuring out management of an employment taking too much sick leave will be outlined. It is important that you go through all these steps in order to resolve this issue efficiently.
1. How Much Sick Leave is an employee entitled to?
Paid sick leave is available for full-time employees where they are unfit for work. This may be due to personal injury or illness, as covered under the personal leave section of the Fair Work Act 2009 (Cth). A full or part time employee has a fixed contract. This contract outlines their work hours and their entitlement for paid sick leave and annual leave. Generally, a full-time employee will receive 10 days off annually.
When employees take paid personal leave, they must give their employer reasonable notice and forms of evidence if requested. This evidence generally includes doctor’s certificates which state that the employee was unfit for work on the days they were absent.
If an employee is frequently calling in sick, you should first confront them to understand what’s going on. Are they missing work because of a serious health problem or is it because of something else? Although this conversation may be difficult, it can resolve the conflict quickly and efficiently.
3. Disability Discrimination Laws
If your employee is taking leave for serious health issues, you must take care not to infringe their rights. Terminating their employment if the employee has a medically recognised disability may be considered a breach of discrimination laws. These health issues may include disabilities such as:
- Mental Disorders: Clinically diagnosed depression and sleep disorders.
- Physical Disorders:
- Cerebral Palsy
- Muscular disorders, such as arthritis.
4. Unfair Dismissal Laws
When considering whether an employee is taking too much sick leave, you should be reasonable. Employees who take temporary personal leave will be protected from unfair dismissal. Protection will apply where the employee has not spent a total time of 3 consecutive months away from work. They must also provide evidence of their injury or illness. Moreover, they are able to take a combination of paid and unpaid leave consecutively.
Employees who are unfairly dismissed can challenge their termination have some options to choose from. They can make:
- An unfair dismissal claim
- A general protections claim
- A claim under anti-discrimination laws.
The employee has 21 days after the day of termination to lodge an application with the Fair Work Commission.
Therefore, if employees are not under this protection, an employer will have two options. First, they can choose to remind them of their work obligations as reliability is generally an implied term in employment contracts. They can also choose to terminate their employment contract with a reasonable amount of notice given.
5. Conclusion on Sick Leave
In conclusion, if an employee is taking sick leave for more than 3 months with insufficient evidence, the employer can terminate their employment. However, where an employee is unfairly dismissed by an employer, they have a range of options offered to them by the Fair Work Commission. If you have any questions about dismissal of employees, you can contact one of our employment lawyers.