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Absenteeism and unfitness for work: a “clean hands” approach

5 December 2016


Absenteeism and unfitness for work: a “clean hands” approach

Planning your response to absenteeism

Chris Oliver, Director and Michael Starkey, Associate

The Australian Human Resources Institute reported in March 2016 that the average Australian worker takes 8.8 days’ personal leave each year, 41 per cent of employers believe unscheduled absences have increased in the last 12 months, and 64 per cent of employers believe unscheduled absences are too high in their workforce.With the cost of unscheduled absences to the Australian economy estimated to be in excess of $44 billion each year (or $578 per employee per absent day),2 the desire of employers to manage absenteeism and unfitness for work is understandable.

The management of these issues requires a measured approach that removes the immediate frustration managers often feel when confronted by an unscheduled absence, but nevertheless remains alive to the detrimental affect that long-term, unresolvable absenteeism can have on a business’ bottom line. By noting the tips outlined in this article, business leaders can ensure their response to absenteeism facilitates getting the employee back to work, while at the same time positioning the business to make difficult decisions in a legally compliant way where this becomes necessary.

An integral part of planning is having a clear objective in mind. In managing workplace absenteeism, there are two distinct potential outcomes – either getting the employee back to work, or a termination of the employment. Our recommendation is to always manage absenteeism with a view to getting the employee back to work. By adopting this approach, managers are far more likely to make instinctively better legal and strategic decisions,and should the time come to move towards a termination of employment, the business will be in a better position to do so without delay.

Legal compliance

In dealing with unfit workers and absenteeism, it is essential that managers understand the minimum entitlements employees have in relation to absences from work for illness or injury (and the related rights of an employer to ensure those entitlements are exercised properly).

  • An employer owes a general duty of care to ensure, so far as is reasonably practicable, the health and safety of employees while they are at work.
  • Full-time and part-time employees are entitled to access any accrued paid personal leave when they are unfit for work due to an illness or injury. An employee seeking to take personal leave must notify his or her employer as soon as practicable that they are taking leave, and must advise the employer of the period, or expected period, of the leave. If required by the employer, the employee must also provide evidence that would satisfy a reasonable person that the leave is being taken for a genuine reason (for example, a medical certificate).
  • It is unlawful for an employer to take any adverse action against an employee because the employee has accessed, or proposes to access, personal leave. However, an employer can require an employee to comply with the notification and evidence requirements outlined above, and, where appropriate, take disciplinary action for any failure to comply.
  • An employer must not dismiss an employee because the employee is temporarily absent from work due to an illness or injury. The temporary absence protection will generally cease to apply to an employee once the employee has been absent from work for more than three months, or a total of three months over a period of 12 months.
  • In circumstances where an employee is eligible to bring an unfair dismissal claim, if the employee’s employment is terminated, an employer will have an obligation to ensure there is a valid reason for the dismissal and that the employee is afforded procedural fairness in relation to the dismissal.
  • An ill or injured employee will usually be regarded as having a “disability” for the purposes of disability discrimination law. Employers have an obligation under disability discrimination law to identify and makereasonable adjustments for employees with a disability. 
  • An employer must not take action against an employee because the employee has a disability, unless the action is taken on the basis that the employee can no longer perform the inherent requirements of the position, and would not be able to do so even with reasonable adjustments.

Getting employees back to work

With the above in mind, let’s take some time to consider the key steps to be undertaken in attempting to get an employee back to work.

Understanding the reason for absence

The key to solving a problem is understanding its cause. Understanding the reasons for an absence will place you in a better position to get an employee back to work, and help proactively prevent absences by eliminating or minimising those reasons if possible (particularly if the cause of the absence is not medical, but related to, for example, poor performance, lack of engagement, workplace stress, or bullying).

Determining what needs to be managed

Despite a worker’s absence, business must go on. Managers need to consider and plan for a number of issues, including the use of temporary resources to manage workloads, how to manage communications (both with the absent worker and internally), and how to manage the cause of the absence. Managing the cause of the absence is likely to include seeking medical certificates, and asking the employee for more information if what is provided is not sufficient.

“The key to solving a problem is understanding its cause.”

Identifying the inherent requirements of the role

Where an absence becomes long term, a business must ultimately turn its mind to whether the absence is likely to impede a worker’s ability to perform his or her role on an ongoing basis. In doing so (and to ensure compliance with a number of legal obligations) reference must be had to the “inherent requirements” of the role.

The inherent requirements of a role are those that are essential (rather than incidental or peripheral) to it. When identifying the inherent requirements of a position, regard should be had to the terms of the employment contract, the tasks performed by the employee, the requirements of the particular employment (including any legal requirements) and the organisation of the employer’s business.

Whether or not an employee can perform the inherent requirements of his or her role should be determined on the basis of the medical evidence. If the employee is unable or unwilling to provide sufficient medical evidence for this purpose, it will usually be appropriate to direct the employee to attend an independent medical examination (with a practitioner who will often be a specialist in the employee’s injury or illness).

Making reasonable adjustments

In determining whether or not an employee can perform the inherent requirements of his or her role, regard must be had to whether the role could be performed if “reasonable adjustments” were made. An adjustment will be considered a “reasonable adjustment” unless making it would impose unjustifiable hardship on the employer (for example, if making the adjustment would be intolerably expensive, impractical or time consuming). Reasonable adjustments may include:

  • providing flexible work hours;
  • providing time off work (including access to unpaid leave) in order for the employee to recover where there is a prognosis that recovery is feasible;
  • providing regular breaks for employees with chronic pain or fatigue; and/or
  • purchasing desks with adjustable heights, installing ramps and modifying toilets. More than one adjustment may be necessary, and more than one option may be available.
“In my opinion, matters such as limited working hours which gradually increase, alterations to supervision arrangements, modifications to face to face meeting requirements, amelioration of deadlines being too tight, changes in the kind of work being performed, minimising conflict situations, avoiding the need to lead teams, where all those matters are envisaged as necessary for a limited period of time of approximately three months, are adjustments which could have been made for [the employee] without imposing unjustifiable hardship on Australia Post.”
Watts v Australian Postal Corporation [2014] FCA 370

Terminations for unfitness for work

In the event that absenteeism is managed with the objective of getting an employee back to work, should a decision ultimately be made that the worker’s employment is no longer tenable, the business will be well-placed to implement that decision quickly, and in a way that minimises legal risks. An employer must be able to demonstrate that any termination of employment based on unfitness for work:

  • is based on sound medical evidence which demonstrates (at least) that the employee will not be able to perform the inherent requirements of his or her role for an extended period of time;
  • has been implemented in circumstances where the employer is able to demonstrate that no reasonable adjustments could be made to allow the employee to perform his or her role (including adjustments which are no longer reasonable, for example, because of their ongoing cost to the business);
  • has been conducted in a manner that is procedurally fair, including because the employer has advised the employee that it is considering terminating his or her employment on the basis of the employee’s inability to perform the inherent requirements of the role and provided the employee with a chance to respond; and
  • complies with any specific requirements under applicable policies or the employee’s contract of employment.

Key Takeaways 

  1. Planning to get an employee back to work will help you make the best decisions, both strategically and legally. 
  2. Employees do not have a right to indefinite absence from work – difficult decisions may need to be made, and, if so, need to be based on sound medical evidence and follow fair procedure. 
  3. Don’t go through the process alone – seek expert medical or legal advice as required.

1 Australian Human Resources Institute, Absence Management (March 2016), <https://www.ahri.com.au/__data/assets/pdf_file/000…>

2 AI Group, Absenteeisn & Presenteeism Survey (2015), <https://www.aigroup.com.au/policy-and-research/ind…>

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