Can I dismiss an employee who has taken excessive sick leave?

Workplace relations specialists at HR Assured regularly receive queries from clients around excessive sick leave entitlements.

Whilst most businesses have a general understanding of sick leave, there are some aspects that are easily overlooked or misunderstood, particularly when it comes to employees on extended periods of sick leave.

Below we outline some of the fundamental elements and key questions businesses often face:

Sick leave and evidence requirements.

Paid sick leave is available to employees (excluding casuals) where they are unfit for work due to a personal injury or illness. Under the Fair Work Act 2009 this is known as personal leave.

When taking paid personal leave, employees have an obligation to notify their employer of the absence and provide reasonable forms of evidence when requested. Reasonable evidence includes documents such as a medical certificate, which stipulates that the employee was unfit for work or a statutory declaration. Once requested the evidence must be provided as soon as practicable.

Extended periods of sick leave.

When an employee is on an extended period of absence from the workplace due to personal illness or injury, this can create considerable uncertainty for a business. As a business owner or a manager, you often find yourself asking questions such as:

• Can I hire someone to replace them?
• Will the employee be able to perform the same role?
• Is the employee is going to return to work at all?
• When can we ultimately terminate?

These situations are never easy! As a business you need to be mindful of certain employee protections that restrict how you respond in these situations.

What are the risks and restrictions employers face?

It is unlawful under section 352 of the Fair Work Act 2009 to terminate an employee who is on a temporary absence due to illness.

An illness or injury is not a temporary absence if it extends for more than 3 consecutive months or a total of less than 3 months over a 12 month period. This means an employee who has been absent from the workplace due to illness or injury for more than 3 months will lose their protection against this kind of dismissal.

However, whilst employees may lose this protection, this does not mean that employers should terminate immediately. An employee who is dismissed on a period of absence due to their ill-ness or injury will still have access to other workplace claims such as, unfair dismissal claims (depending on their length of service), general protections claims, as well as a discrimination claim under the relevant federal or state anti-discrimination laws.

What are the rights of employers?

Whilst as an employer you will need to navigate around the protections afforded to employees, you still have the right to request reasonable evidence of the illness or injury and ensure the employee complies with reasonable directions during their absence.

If an employee has not been providing medical certificates or statutory declarations to support their absence, they will not be protected from dismissal for temporary absence. However, even so, an employer must still ensure they provide procedural fairness and take all reasonable steps to obtain medical evidence and communicate with the employee.

When considering whether to terminate an employee due to an extended absence, employers must ensure that they follow due process to determine whether the employee is able to perform the inherent requirements of the role. In addition to this, steps must be taken to deter-mine whether any reasonable adjustments can be made to the role to facilitate the employees return to work. This process must be guided by medical evidence!

As you can imagine this won’t always be a straight forward process. That’s where HR Assured’s workplace relations consultants provide support.

This article only touches on just a few of the many considerations necessary regarding employees with prolonged illness or injury who are on sick leave. State-based legislation further complicates the process where an employee has been injured at work.

If you’d like more information about the benefits of becoming a HR Assured client contact us today for an informal chat.