An absent employee can cause serious problems for your business and it’s understandable to consider dismissal. However, if you dismiss them without following best practice, then it might be an ‘unfair dismissal’. Unfair dismissal under The Fair Work Act 2009 (Cth) is where circumstances of dismissal are ‘harsh, unjust or unreasonable’. Read on to learn more about best practice in this scenario and avoid an unfair dismissal claim.
Identify and assess the problem
Firstly, find out why your employee stopped coming to work. There are many reasons for why this could be happening. For example, your employee may be experiencing workplace bullying, family illness or a lack of job motivation. Look at how serious the problem is and for how long they have been absent. Your employee should be covered by an industrial instrument (Award or Enterprise Agreement) or employment contract. Take a look at this and remind yourself of the expectation you first set when employing them.
Notify the employee who is absent
Let the employee know that them not showing up is making you consider their termination. This should preferably be done in writing. Allow them to respond to you.
Meeting with your employee
Let your employee know that you want to have a meeting about their absence so they can prepare. They can bring a union member or support person with them to the meeting. Have the meeting in a relaxed, private environment so that you and the employee are both fully comfortable to discuss the issues.
By the time you leave the meeting, your employee should know that their absenteeism is an issue. You should also give them details about how it is affecting the business and why you’re concerned. It is best practice if you can come up with a joint solution.
Monitor the situation
Give the employee some time to make changes and change their behaviour. Consider keeping a log of their work hours and absences. Additionally, record any communication you have with them both in writing and verbally.
Can I terminate the employment?
If you’ve followed the following steps above, there isn’t an improvement then you may able to terminate an employee that stopped coming to work. As a small business owner, your employee has to have been working for you for less than 12 months in order to make a claim against you for unfair dismissal.
Things to keep in mind…
Casual Employees
You don’t have to give notice of termination to a casual. Therefore, if your casual employee has not been showing up, terminating their employment may be a viable option. However, following the steps above may allow for a positive work relationship and opportunity to improve workplace systems. Under the Fair Work Act 2009 (Cth), casuals cannot claim unfair dismissal unless they’ve been working for you for 12 months (small business) or 6 months (not small business). They also have to have worked for you on a systematic and regular basis for that time with intentions of ongoing employment. Keep this in mind when making a decision about what process to follow.
Probationary Period
If a new employee on their probationary period isn’t showing up to work, you can end their employment at any time during that period. You should generally give a minimum of 1 weeks notice. To do this you must provide a letter outlining their unsuccessful probationary period. You also need to ensure they know the standards of expected performance and behaviour at you workplace around coming to work.
If you’re unsure about what to do with an absent employee it is worth getting in touch with an employment lawyer.
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