June 2018

“I'm sick ... and that's that”: managing employee absences

Employees (and their unions) may sometimes hold the belief that an employer may not question their absence from work or challenge their medical certificate.  "It's my right to take sick leave", they may exclaim.

A manager may fear challenging this employee, and prefer to not have a difficult conversation.  Maybe they have heard an Industrial Commissioner say "[w]here the certificate states that the employee will be absent on a particular date it must be assumed that the doctor found the employee incapable of working on the specified date”.[i]

Employers do have the right to manage absences.  To ensure business services are delivered effectively and efficiently, employers must manage resources (including staff) and discharge their legal obligations (including safety) with full and proper information to make the right decisions. Employees are obliged to cooperate. 

Dishonesty and misuse ... an obvious basis to challenge 

An employer may question absences and medical certificates in cases of suspected forgery[ii] or misuse.  Examples of misuse include employees:

  • undertaking secondary employment whilst allegedly absent for 'viral illness';[iii]

  • providing a medical certificate but attending a football match instead.[iv]

But be cautious to not jump to conclusions.  An employee unwell for work (due to the anxiety and stress of the workplace) may nevertheless be fit to engage in other activities, such as appearing on the television show ‘Beauty & the Geek’.[v]

A contract to fulfil 

Underpinning every relationship is an employment contract, whether written or unwritten.  A commitment given by an employee to their employer is to attend work, as agreed, and to perform the duties of employment to the best of their ability, in the best interests of their employer.

Sick leave 

Yes, an employee can be given leave from their contractual commitment, if sick.  However, two important qualifications need to be made to that broad statement:

  • firstly, sick leave is not an entitlement but a contingent benefit;[vi]

  • secondly, sick leave is available when the employee is unfit to attend to duties because of illness or injury – that is, they may be ill or injured but still able to work.

The Fair Work Act 2009 and reasonable proof

Sections 97 and 107 of the Fair Work Act 2009 provide that, if an employer requires it, an employee must provide evidence that would satisfy a reasonable person that sick leave is taken because the employee is not fit for work because of a personal illness, or personal injury.

An employee’s entitlement to take paid sick leave is contingent on them complying with the evidence requirements.[vii]  What constitutes “reasonable evidence” depends on the circumstances, however generally a medical certificate or statutory declaration should be accepted as appropriate evidence.

Statutory declarations have long been found to be an acceptable alternative to unnecessarily requiring an employee to incur the cost and inconvenience of obtaining a medical certificate, especially in rural areas.[viii]  Equally, statutory declarations to prove absence have been found to be open to misuse by irresponsible employee attitudes.[ix]

Workplace safety - a fundamental responsibility 

An employer has a positive duty to ensure, so far as is reasonably practicable, the safety of employees and others at work.  To discharge this duty, an employer needs to be properly informed.

As such, it may be reasonable and necessary for an employer to require an employee (who is certified fit to return to work by their doctor) to undergo an independent examination by a company doctor.  This is to ensure that the worker is not exposed to unacceptable levels of risk.[x]

It is also important to keep in mind that employees have duties under work health and safety legislation.  These duties include ensuring that their acts or omissions do not endanger them or others; and that they co-operate and comply with lawful and reasonable directions and policies of their employer.

The common law says

The common law implies into the employment contract a term[xi]:

… that an employer be able, where necessary, to require an employee to furnish particulars and/or medical evidence affirming the employee's continuing fitness to undertake duties.  Likewise, an employer should, where there is a genuine indication of a need for it, also be able to require an employee, on reasonable terms, to attend a medical examination to confirm his or her fitness.

Where an employee does not comply with such requests, it may (depending on the circumstances) provide a valid reason for dismissal.[xii]

It is okay to (reasonably) ask questions

Yes, it is ok for an employer to ask questions.  Indeed, an employer should do all that is reasonably practicable to ask and inform itself on employee absences from work to ensure that there are no work, health and safety risks. 

So, when a Qantas captain challenged Qantas questioning his medical certificate and continued absence for mental illness, the Federal Court usefully observed[xiii]:

An employee’s statutory, certified agreement or analogous industrial award based entitlement to take sick leave does not displace the contractual relationship in which, at some point, the employer is entitled to make its own business arrangements to adjust for the impact that the leave caused by the sickness of the employment will have on it and to address its obligations under the Work Health and Safety Act

Of course, there are limits to what can reasonably be asked.  If the sick leave absence is not work related, then it is rarely relevant what caused the illness or injury.  It may also be unlawful to ask an employee to disclose their disability in circumstances where a person without a disability would not be required to do so.[xiv]

It is consistent with employer duties of care though to reasonably ask an employee if they can safely perform the inherent requirements of their job.  Where there is claimed incapacity, it will be reasonably necessary to ask whether any reasonable adjustments,[xv] or special services or facilities may be needed,[xvi] so that the ill or injured employee can return to work safely or to decide if such accommodations would cause unjustifiable hardship to the employer.[xvii]

Good management means asking the right questions 

Whilst not easy, managing absences is an important part of a manager’s role.  We recommend:

  • engaging with the ill/injured employee early and regularly (but not be harassing);

  • talk to the employee (not just about incapacity but) about their fitness, and what they can safely do;

  • where possible, liaise with them and their doctor, or other occupational health and safety experts, about a safe and healthy return to work (with any reasonable adjustments if necessary); and

  • remember – the end goal is to achieve a timely, functional and safe return to work.

Managing absenteeism is difficult, but knowing you may reasonably ask questions and manage any absence, gives confidence to do so.  If you would like advice on navigating these, and other obligations (such as discrimination), please give us a call.

Authors: James Mattson & Darren Gardner

 

[i] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australia Post [2006] AIRC 541 at [124] and [125].

[ii] Sulis v Woolworths Ltd [2010] FWAFB 145 and Bulzer v Monash University [2017] FWC 2536

[iii] J Didomizio v Tetra Pak Manufacturing Pty Ltd [2005] AIRC 936

[iv] Anderson v Crown Melbourne Ltd [2008] FMCA 152

[v] Marshall v Commonwealth Of Australia (represented by The Bureau Of Meteorology) [2012] FMCA 1052

[vi] Kenneth Ross Milburn v Capral Aluminum Ltd [2004] NSWIRComm 302, [84] – [85]

[vii] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140

[viii] Amalgamated Engineering Union Case (1942) 46 CAR 472

[ix] Steel Workers Case (No.1) (1962) AR 334 at pp.377 and 278

[x] Grant v BHP Coal Pty Ltd [2017] FCAFC 42

[xi] Blackadder v Ramsey Butchering Services Pty Ltd [2002] FCA 603

[xii] Salat v NSW Police Force [2011] NSWIRComm 1040

[xiii] Australian and International Pilots Association v Qantas Airways Ltd [2014] FCA 32 at [64]

[xiv] Section 30, Disability Discrimination Act 1992 (Cth)

[xv] This is the language used in s 21A(1) of the Disability Discrimination Act 1992 (Cth)

[xvi] This is the language used in s.49B(4) of the Anti-Discrimination Act 1977 (NSW)

[xvii] Sections 21A and 21B, Disability Discrimination Act 1992 (Cth);  s.49D Anti-Discrimination Act 1977 (NSW)