Updated: Jun 20
Staff absenteeism, whether it is genuine or for other reasons, can cost your business money and seriously impact work performance and overall productivity. As an employer, you may be faced with the issue of an employee who calls in sick all too often – but taking disciplinary action on an employee who is exercising their lawful right to sick leave can get you into serious trouble as an employer.
If you are concerned about an employee who may be abusing their sick leave and wondering about what you can do about it, here are 8 steps you should follow to address the issue:
1. Understand your obligations
Permanent full-time employees are entitled to a minimum of 10 days paid Personal leave per year (which includes ‘Sick leave’ and ‘Carer’s leave’). Pro-rata leave applies for part-time employees, and casual employees are not entitled to paid sick leave.
All employees, including casuals, are entitled to 2 days unpaid Carer’s leave (for each occasion) to look after sick family members or to provide care and support due to their injury or an emergency.
Permanent employees can only get unpaid carer’s leave if they don’t have any paid Personal leave left.
2. Know your employment agreement
Have a look into the employee’s employment contract to determine the company expectations and standards on absenteeism, and whether this agreement has been followed. Does it outline that an employee will need to call their manager as soon as possible to advise of the nature and duration of their sick leave, and does it also state that a medical certificate or a statutory declaration is required for the sick day?
3. Have a clear policy
It is important to have a clear workplace policy in place that details the appropriate use of personal (sick) leave entitlements and the employer’s stance on what will not be tolerated. Such policy may require an employee to provide appropriate evidence for their leave e.g. medical certificate under certain circumstances (e.g. either side of a weekend or public holiday.)
The policy should also notify employees of the consequences for abuse of sick days. As an example, if your employee does not provide you with a doctor’s certificate, you may not have to pay them for that sick day.
4. Notice the patterns
Analyse your attendance records and identify whether there is a pattern of absence, such as an employee who often “chucks a sickie” on a Friday or Monday etc.
5. Have a chat with your employee
Have a ‘one-on-one’ chat with your employee and explore whether there may be an underlying issue that you should be aware of, or that you can help with.
Absences may occur because the employee is avoiding something or someone at work, they may be highly stressed and can’t face their workplace, or perhaps they may be disengaged from their work or is not responding well to management decisions and practices. Could you have inadvertently created a workplace culture of staff feeling entitled to use up all of their personal leave each year? Or is it something more complex at home such as a family or domestic violence situation, or was it due to a regular staff hangover from the night before. Perhaps they may have a medical condition that needs to be addressed?
This may be a great opportunity to clarify your expectations with the employee and to remind them that reliability is an implied part of their employment contract, and the importance of attendance on certain days. Gently explain that you are aware and concerned about their absences and that if the behaviour unreasonably continues and impacts on their performance, that their job might be at risk.
6. Work towards finding a solution
Depending on what has been uncovered as the underlying issue contributing to the absenteeism, you can then explore ways to help staff. For example, where there are issues involving workplace stress or personal issues, offering access to an Employee Assistance Program (EAP), or flexible work options, or health & wellbeing initiatives could go a long way.
Where the issues are management and discipline-related, you should clearly communicate your expectations and ensure evidence is requested where required. It is vital that your managers are trained in your leave and disciplinary policies, if you have them (and if you don’t have them, you really should get some!).
7. Understand unfair dismissal laws
Under the Fair Work Act 2009 (Cth), employers cannot dismiss employees who are away from work temporarily because they’re sick or injured (up to 3 months –consecutive or non-consecutive– for the same illness/condition, or over a short period of time). Liabilities include severe civil penalties for sacking employees who are exercising their workplace right to sick leave.
However, you may have a reasonable case for dismissing an employee if they exhaust their sick leave entitlements and take more than 3 months off work due to illness –consecutive or non-consecutive.
In either case, you must first make it clear that their behaviour is putting a strain on the business, and you need to give them a chance to respond with their side of the story and give them a chance to improve (i.e. performance improvement planning).
8. Don’t forget about general protections laws and disability discrimination
Be wary of potential ‘adverse action’ or general protections (unlawful actions) claims, and disability discrimination. If your staff member has a recognised disability such as a physical disability or mental illness (e.g. anxiety and depression, bipolar etc) or psychiatric disorder (e.g. sleep disorders), and you dismiss them for taking too many sick days, you may also be liable under discrimination laws.
In short, you cannot sack an employee for taking leave within their lawful rights, but you can manage the rules regarding provision of evidence. If employees are going beyond their leave entitlements, you can consider disciplinary action which may result in dismissal. Often, the best way is to approach each situation with a softer and more measured approach to begin with, as it may be resolved simply and amicably – this is a considerably cheaper option too!
Dealing with employee absenteeism in your business? Find out how Itch People + Culture can help! Contact us here.