We get a lot of questions from small business owners and managers asking about the rules for terminating employees for excessive sick leave. The answer is that, employers aren’t able to fire an employee for taking too much sick leave. They can only terminate an employee if they cannot fulfill the inherent requirements of the position, which goes well beyond most circumstances. For example this article- Fair Work Commission backs employer that sacked worker for being too fat,” that was recently posted on theage.com.au, provides one of those circumstances.
As with the example from the article where the employee, an obese forklift driver’s weight directly poses a workplace safety issue, the grounds for dismissal needs to be fairly similar. Therefore in order to lawfully terminate the employee, they must either be unable to perform their job or unable to perform their job safely.
It is unfortunate but since the Fair Work Commission protects employees from being discriminated against due to their health, their are situations where employees abuse their power to take advantage of their employer. As an HR professional, I advise businesses that suspect their staff of taking unnecessary sick leave to pursue the issue from another direction.
My advice ….
When it comes to employees calling in sick, make sure you have a process in place for utilizing sick leave. You want to have clear procedures for the notification and documentation process so that you are able to identify and address those issues if not followed by the employee (e.g. need to have a phone call by a certain time instead of text message).
This is helpful because the chances are, there is a reason behind the employee calling in (whether it is genuine, or not). Where it is not-genuine, it is often an issue of motivation or else there may be personal issues impacting on them. It is easy in this circumstance to say “stuff them, they should be turning up!”. But that won’t make it go away. So the third step (which is usually the most effective) is to have good open communication with your staff – even those who are taking excessive sick leave. You should know what is going on in the world of all your people, all the time. You are paying them to perform work in your business and if they aren’t working, how could you not want to know what is going on with them?
If thinking of terminating an employee, here are some key points to remember:
- You can terminate an employee on the grounds of capacity if they cannot fulfil the inherent requirements of the position. However, in nearly all cases of excessive sick leave it will be difficult to demonstrate whether or not a person can fulfill the inherit requirements of the position. Employers should temper their expectations accordingly.
- You still need to be procedurally fair, including consulting with the worker over a period of time
- You cannot terminate someone just because they have excessive sick leave taken
Disclaimer: The information contained within this article is based on our best knowledge and we believe all facts to be true at the time of writing. We take no responsibility for any application of this information, as it does not constitute legal advice (and should not be taken as such).