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  1. #1
    Join Date
    Dec 2014
    Location
    Melbourne, Victoria
    Posts
    3

    Default Temporary absence - illness or injury (Calculate Termination pro-rata?)

    This is my first post, so please be kind.

    I am in the process of terminating a member of staff who has been taking excessive personal leave over the last 12 months.

    This employee is on an ‘irregular part-time’ contract (ongoing), with a minimum of 15 hours per week over a 7 day period.

    Over the last 12 months, the employee has worked 908.75 hours and has been absent for 250.75 hours (excluding paid personal leave). Overall, the employee has been absent for 28% rostered shifts.

    Under the Fair Work Regulations (Temporary absence - illness or injury), the protection does not apply if

    (i) the employee's absence extends for more than 3 months; or
    (ii) the total absences of the employee, within a 12 month period, have been more than 3 months (whether based on a single illness or injury or separate illnesses or injuries);

    Therefore, my question is, can I pro-rata the absences to equal a time fraction equal to three months?

    The regulations speak of in terms of days, but how does this apply to part-time staff?

    This employee never turns up, always provided a med cert, and has been on two performance improvement plans, and has had two final warnings. This matter has been going on for 2 years. (PS: I’m new to this organisation and have just taken over this case).

    Thank you.

  2. #2
    Join Date
    Dec 2014
    Posts
    3

    Default

    Hi Andrew , This is only my second response so I will equally be looking for kindness.

    I am familiar with the concept of an "irregular part-time contract" however am not sure if these meet the changes brought into the Fair Work Act in Jan 2014 around part timers and need for fixed hours and the requirement to consult around changing of rostered hours.

    Not knowing the relevant employment instrument it is difficult to advise accurately.

    If the "irregular part time contract" falls within the bounds of the act, the relevant award or any enterprise agreement then the concept of prorataing hours is valid.

    There are different ways of doing so, one I have used in the past is matching it to the state LSL legislation for calculating casuals entitlements, another is to use the most recent 13 weeks to identify the average hours.

    I would encourage you to confirm the status of the contract prior to dismissal to ensure that there are no surprises if you get challanged.

    Kind Regards

    kirt

  3. #3
    Join Date
    Dec 2014
    Location
    Melbourne, Victoria
    Posts
    3

    Default

    Hi everyone... Is anyone able to assist with the above?

    Thank you.

  4. #4
    Join Date
    Dec 2014
    Posts
    3

    Default

    Hi Andrew, please check that an irregular part time contract is still allowed under the employment instrument for this employee, i.e. Modern Award / EBA, as there was an amendment a while ago within the Fairwork Act which made it a requirement for Part Time staff to be allocated fixed daus and start and finish times, which can be changed subject to consultation. Don't want to head down one path and then get thrown a curve ball with a claim for O/T or breach of contract. In answer to your specific question yes pro rata is fine , the period that you pro rata over may be covered in the instrument otherwise contact Fairwork on 131394 for advice or use the same time period as your states LSL legislation for calculating casual employees LSL entitlements. Cheers

  5. #5
    Join Date
    Feb 2012
    Location
    Queensland
    Posts
    56

    Default

    This is by no means qualified advise, but I think it's reasonable to assume the employee has been absent for an equivalent 3 months, given the calculations/figures you have provided. In my opinion the "total absences of the employee" talked about in item (ii) of your quoted Fair Work Act would include paid personal leave - but I might be wrong about this.

    Again, this is only my educated assumption, but with regards to The Act only talking in terms of days I think it's reasonable to break it down to hours given that this is a part time employee and does not work the 'traditional' day. This would obviously be the method you are using to calculate the employee's leave entitlements (i.e. accruing in hours not days), so it should be an adequate method for determining the total amount of time off.
    I guess you would need to take care in your calculations in case the employee could prove that they were not absent for 3 months using a different method to yours of calculating the time (i.e. using days rather than hours).

    You could give Fair Work a bell for advise, but they are not always helpful. I'm a member of Qld Chamber of Commerce & Industry and they offer free HR advise.... maybe your company subscribes to such a service and you can chat to them more about it?

    Bulls.

  6. #6
    Join Date
    Dec 2014
    Location
    Melbourne, Victoria
    Posts
    3

    Default

    Hey Bulls,

    Thanks for the response.

    1) I have not included personal leave as part of the calculation. So effectively, this individual has been absent for (personal leave) + (personal leave without pay) for in excess of four months (Pro-rata).
    2) I agree that is it reasonable for part-time staff to be treated equally.
    3) I have spoken to VECCI (equivalent of Qld Chamber of Commerce) and they have advised that this would be a test case should it escalate as the regulations are silent on this matter.

    Thanks again Bulls.

  7. #7
    Join Date
    Apr 2012
    Posts
    196

    Default

    Two PIPs and two warnings - sounds like a lot has been done on this employee. However, even with that, if employee tried an adverse action claim against you on basis of absences being related to illness, employee likely to win (because they always do!!).
    In your shoes (I sense your frustration on this), I'd deliver a final written warning now requiring the employee to be at work for all appointed shifts and failure to do that ie to carry out inherent requirements of the job, will mean next time there is a meeting, he/she will be terminated. With a final written warning, you need to make sure you state that any further breaches etc will lead to termination of employment - so he/she can't say they didn't know. Deliver it with a witness and be sure to have employee sign the FWW. If they refuse, then have the witness sign to effect the employee refused to sign.
    As another responder noted, without all the information, none of us here can give you definite advice. You need to weigh the pros and cons and decide if the risks worth it for you to be rid of this employee. Usually with Adverse Action Claims, the penalty is monetary and if only a year's employment, it's not likely to be too much. But if you are still uncomfortable with this, I'd seek advice from an employment lawyer. As already advised, you could try Fair Work but from experiences of others, they don't always have the answers and are often no help at all. One final thought, if part time, and only a year of employment, this employee will have well and truly exhausted his/her Personal Carers Leave so all the absences will be hurting due to so much leave without pay - that begs the question as to whether there is some legitimate sickness here.
    Happy 2015
    Tiger

  8. #8
    Join Date
    Feb 2012
    Location
    Queensland
    Posts
    56

    Default

    Hey Tiger, I'm not so sure about the letter
    Quote Originally Posted by Tiger View Post
    now requiring the employee to be at work for all appointed shifts and failure to do that ie to carry out inherent requirements of the job, will mean next time there is a meeting, he/she will be terminated.
    Couldn't the employee come back with the "What?! I'm not allowed to take sick leave now!?" type of argument?... I guess you have to be careful with the wording...

  9. #9
    Join Date
    Apr 2012
    Posts
    196

    Default

    If earlier warnings have been delivered properly, in writing and with witnesses, etc, the final written warning is just that - a written statement which is basically saying despite the previous warnings etc, improvement has been zero or negligible (whatever it is) and this is it - a final warning that if employee doesn't pick up his act, his employment will be terminated.
    As hinted at by both this responder and another, most of us in this forum cannot make any decisions for you - we simply don't have all the facts; what we (certainly I do anyhow) can do is bring our own experience and knowledge to the table to provide options for you to consider - no two situations are ever the same.
    As recommended before, I suggest you seek a legal employment specialist advice if having someone else make the decision for you on what to do going forward is what you require.
    Tiger

  10. #10
    Join Date
    Jul 2007
    Location
    Canberra
    Posts
    54

    Default

    As other responders have noted, yes you can use pro-rata calculations to determine that this employee has been absent for more than 3 months (expressed in their part-time work roster). The restriction preventing termination of employment because of a temporary absence from work due to illness or injury therefore won't apply.

    However, that's only one restriction and there's many more traps for the unwary player. I'd be particularly concerned about the prospect of a General Protections claim alleging some form of discrimination (see s. 351 of the Fair Work Act). It's all too easy for someone to allege that they've been dismissed for some discriminatory reason (such as physical or mental disability). I would be very cautious about dismissing someone based only on the fact that they've had frequent and numerous absences.

    I would suggest that you need much better evidence about the reason(s) for the absences, and their likely prognosis for the future, including whether the condition will prevent the employee from carrying out the inherent requirements of their job. This will give you an indication about whether to proceed on underperformance grounds (because the employee is capable of doing their job but is not doing it) or medical grounds (because the employee is not capable).

    Cheers,
    Greg.

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