Results 1 to 9 of 9
  1. #1
    Join Date
    Apr 2014
    Posts
    3

    Default Frustration of contract

    Hi All,

    We have an employee who has had in excess of 65 days sick in the last 12 months. He has been off for the last 6 weeks, and the other illnesses have been sporadic throughout the year. He has been employed for approx 5 years, and has had a similar SL pattern each year. He continues to say on the friday that he expects to be in on the monday, but then calls in sick for the whole next week on the monday.

    His illness changes, but generally it is related to the fact that he doesn't like his job and thinks he should be doing other roles. The latest illnesses are on the back of a business decision that he wasn't in favour of.

    From a frustration of contract perspective, can anyone confirm if 3 months in the one year is 3 working months (65 days) or is it more like 90 days in a year? Can this be calculated on hours - or do only full days count. The individual has also had a number of part days, works for an hour and then goes home.

    Any help is appreciated.

    Thanks, BBMS

  2. #2
    Join Date
    Feb 2012
    Location
    Queensland
    Posts
    56

    Default

    Quote Originally Posted by BBMS View Post
    Hi All,

    can anyone confirm if 3 months in the one year is 3 working months (65 days) or is it more like 90 days in a year?
    Without authority, I would suggest it's 3 months, 90 days or 65 working days. Are you considering terminating employment?
    (i assume employee has provided med. certs. and the leave is unpaid?).

  3. #3
    Join Date
    Apr 2014
    Posts
    3

    Default

    Thanks Bullswool. Yes, we are considering termination. He has provided medical certs. and has had this leave unpaid (after exhausting his entitlements).

  4. #4
    Join Date
    Feb 2012
    Location
    Queensland
    Posts
    56

    Default

    Terminating employee due to illness is tricky. No easy answers or solutions
    Below is a cut n paste of some info/research i did on the subject in Oct last year as I had a similar problem, and a copule of links. Fortunately, our employee left of own accord.

    Termination of employment due to an employee’s illness or incapacity can be a very difficult area.

    The Fair Work Act prohibits the dismissal of an employee where the reason is due to the employee’s temporary absence from work because of personal illness or injury.
    An employee is protected from dismissal when temporarily absent due to illness or injury unless the employee’s absence on unpaid personal/carer’s leave extends for more than 3 months, or total absences of 3 months within a 12 month period. Any absence on paid personal/carer’s leave is not to be included in the 3 month period, however, a period of absence on workers compensation is included as part of the 3 months.
    Alternatively, an employee who is dismissed because of illness or incapacity may make a claim under relevant disability discrimination law
    Although an employee absent on workers compensation is protected from dismissal under the Fair Work Act for the first 3 months of their period of absence, many state and territory workers compensation laws also prohibit the termination of an employee’s employment by the employer within a specified period of time where the sole or primary reason for the dismissal is because of the employee’s absence on workers compensation. The ‘specified period’ can range from 6 months (under NSW law), to 12 months (under Victorian law), or indefinitely (under South Australia law where the employer employs 10 or more employees).
    Refer to the relevant state or territory workers compensation law to determine whether the employer can terminate an employee who is absent on workers compensation.
    Where the illness or incapacity is not connected to employment and therefore not covered by workers compensation, the employer is entitled to terminate employment on the ground that there is a valid reason related to the employee’s capacity. In such a case, the requirements of dismissal with notice must be met. Note however that it would still be possible for an employee to lodge a claim of unfair dismissal on the basis that he/she still had the capacity to perform the job, and/or that the termination process was handled unfairly.

    Therefore, the recommended practice is to ensure that you have solid evidence of the employee’s incapacity to work (such as independent medical assessments) as a basis for your decision. It is also advisable to consult with the employee, particularly a long-serving employee, about the situation, and examine the feasibility of possible 'coping strategies' such as transferring the employee to a job that is less physically demanding, or modifying the existing job.

    When in doubt, seek expert legal and/or medical advice before making a decision, as cases involving injury/incapacity are often costly and lengthy.


    Can you terminate an Employee who is on Sick Leave? | Fairwork Online

    Dismissing an employee with long term medical issues - Employment and HR - Australia

  5. #5
    Join Date
    Apr 2012
    Posts
    196

    Default

    Whilst agreeing this can be tricky, it boils down to the employee's inherent inability to do the job, well certainly on the basis you want. If he can't handle full time work (ie is genuinely sick), suggest part time; if he doesn't like that idea then suggest he take time out (unpaid of course if no leave) to get himself into shape; if he doesn't go for that then put him on a performance management plan (PIP) and manage him as you would anyone else. It may be difficult to meet performance goals/expectations if he is not showing up for work, if he doesn't, then terminate - at least you've given him the wake up call which would force most intelligent people to either get on and do the job or go. His absenteeism will be also having negative impact on co-workers and other employee see he is getting away with it and you don't do anything -- that is not good believe me.
    He may well go for the lessor hours if all the time he's been taking has been LWOP - he can't be concerned about money.
    I think the sooner you act the better or before you know it, you could have a WC claim on your hands then you are really stuck.
    Good Luck
    Tiger

  6. #6
    Join Date
    Feb 2012
    Location
    Queensland
    Posts
    56

    Default

    If you opt for LWOP for a period of time to allow the employee to get well again, put a strict timeline and conditions in place. There in no entitlement to unpaid leave in FWA as far as I know.
    The problem with LWOP is what if the employees returns after 12-18 months, saying "Hi, I'm well again, wheres my job?"

  7. #7
    Join Date
    Jul 2013
    Location
    Brisbane
    Posts
    12

    Default

    what is wrong with him?

    I would suggest an independent medical assessment, to ascertain if he really suffers from bad health or if he is pulling a dodgy.

    Don't assume anything - clarify the facts.

    I would also suggest a performance management plan. Lay out the expectations of the role very clearly, explain what he needs to achieve. Gain acceptance from him that he can actually do the job. If he accepts, I believe you would have the right to terminate if he then does not deliver.

    You need to gain confirmation from him, preferably in writing that he can performance in the role and achieve the KPI's associated to it.

    Can you give him some new tasks to do? If you think the is bored, does not like his job, then find out why.

    Always look for a win/win first

    And Good Luck!

  8. #8
    Join Date
    Apr 2014
    Posts
    3

    Default

    Thank you all for your suggestions - all valid and gives me something to think about.

    I don't want to end up down the WC path as we have been down the WC path some years ago with this individual (stress). We have also supported a flexible working arrangement for over 4 years and modified his duties (well beyond what we would support for other individuals). Even this arrangement hasn't assisted in improving attendance. The problem with a PIP is that when is is at work he can do the job very easily, and meets all performance expectations, so whilst this is the obvious option, I don't see this leading as the right outcome in this circumstance. Other than having the wrong attitude and values at times, he is a good performer. As soon as an issue is addressed he then takes extended sick leave. The individual visits many Dr's, so it is difficult to get a clear opinion of what it wrong, and it changes dependant on the medical opinion sort. My next option is an IME - but I am cautious of opening a can of worms that may lead to another WC claim… thoughts? (I appreciate the help)

  9. #9
    Join Date
    Jul 2007
    Location
    Canberra
    Posts
    54

    Default

    Tiger and others are right. I'd suggest a discussion with the employee about his frequent absences and whether he would be better able to work part-time or whether he would benefit from some planned time away from work (as opposed to unplanned absences that make life difficult for everyone else).

    It's important not to terminate because of his frequent past absences, especially if they are supported by medical certificates. However, his frequent absences probably give you cause to be concerned about whether he is medically fit to carry out the inherent requirements of his job. I'd suggest that this can be assessed by providing an independent doctor with information about the role (including any particular physical or mental challenges) and information about the employee's rate of absences over the past (12?) months. It's best to pose some specific questions to be answered by the doctor such as: Is the employee's current state of health such that he should be able to carry out this role without taking excessive sick leave? If not, when might we reasonably expect that the employee will be fit to perform the role? And so on.

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •  
APS4 - APS6 Recruitment Advisors - Canberra CBD
Posted on 28 Mar 2024 at 12:54pm

P&C Advisor - Melbourne
Posted on 28 Mar 2024 at 4:30am

HR Business Partner - ER - Hills District
Posted on 28 Mar 2024 at 2:22am

VPS5 Senior People Partner - Melbourne
Posted on 27 Mar 2024 at 11:21pm

VPS5 Senior TA Partner - Contract - Melbourne
Posted on 27 Mar 2024 at 11:20pm

RD Writer - Contract - Sydney
Posted on 27 Mar 2024 at 11:20pm

VPS4 HR Business Partner - Contract - Melbourne
Posted on 27 Mar 2024 at 11:16pm

Rostering Officer - Contract - Baulkham Hills
Posted on 27 Mar 2024 at 2:52pm

Workplace Relations Advisor - North Sydney
Posted on 27 Mar 2024 at 4:05am

A06 HR Business Partner - Contract - Brisbane
Posted on 26 Mar 2024 at 11:05am

HR Advisor - Perth
Posted on 26 Mar 2024 at 1:50pm

Employee Relations Manager - Sydney
Posted on 26 Mar 2024 at 1:56am

HR Business Partner - Contract - Perth
Posted on 25 Mar 2024 at 8:31am

HR Manager (Part-Time) - Permanent - Footscray
Posted on 25 Mar 2024 at 8:29am

HR Advisor - Sunshine Coast
Posted on 24 Mar 2024 at 9:48pm


 

Powered by vBadvanced CMPS v4.2.1