Absenteeism is an employee’s unexpected absence from work. These absences can be for a legitimate reason or an illegitimate reason. Employers are naturally most concerned about absenteeism for illegitimate reasons.
The cost to Australian businesses of employee absenteeism is significant. Employees are taking approximately 9.5 days personal leave each year. According to Direct Health Solutions, the cost of absenteeism to businesses is approximately $3,230 per employee per annum and the total cost to the Australian economy from absenteeism now exceeds $33 billion per annum in payroll and lost productivity costs.
Full-time employees are entitled to 10 sick days per year. This is an equivalent pro-rata amount for part-time employees. The entitlement accrues progressively during a year of service according to the employee's ordinary hours of work, accumulating from year to year. There is also an entitlement to an additional 2 days unpaid personal/carers leave each year.
Personal/Carer’s leave may be taken if (in summary):
- the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or
- To provide care or support to a member of the employee's immediate family, or a member of the employee's household, who requires care or support because of a personal illness, or personal injury, affecting the member, or an unexpected emergency affecting the member.
Employees must notify their employer for all periods of personal/carer’s leave as soon as practicable. This notice may be given by an employee a time after the leave has started and they must advise the employer of the expected period of the leave. An employee who has given the employer notice of the personal/carer’s leave must, if required by the employer, give the employer evidence that would satisfy a reasonable person that the leave is taken for the correct purpose.
You may dismiss an employee for excessive absenteeism if:-
- The employee fails or refuses to provide medical information required by the employer;
- The employee falsifies a medical certificate;
- There is obvious misuse of personal/carer’s leave; or
- The employee is unable to fulfil the inherent requirements of the job.
There are strict rules and procedures that must be followed before an employee can be dismissed for one of the reasons listed above. Employers should always seek legal advice before proceeding with the dismissing of an employee.
If the correct process is not followed then an employee may have the ability to seek remedy under the unfair dismissal laws, which effectively provide, in summary, that an employer cannot dismiss an employee unless there is a valid reason for the dismissal and the employee is afforded procedural fairness in the termination process. There are also other claims that an employee can make if they have been dismissed. For example, the relevant general protection provisions of the legislation provide, in summary, that an employer may not take “adverse action” against an employee because they have a “workplace right”. The term “adverse action” is defined to include dismissal. A “workplace right” includes the right to take personal/carer’s leave.
If you are seeking advice on the matters above then please contact Connolly Suthers Lawyers on (07) 4771 5664 or email law@connollysuthers.com.au.
Brendan Gaeta