Sick Leave - New start.

Hi,
We have an employee who commenced work with us in NSW in a full time role one month ago. His start date was delayed by one week, as he was certified sick. Despite a few days in the office initially, he has been unwell and has worked from home with his doctors approval. We were able to accommodate this as his first month involved self-study and training which he could do from home. He has since been in the office on an occasional day but he continues to be unwell, and there is no end in sight. To fulfill his role, we need him to now be able to work with our customers on-site. We do not have anything written in our company handbook about sending him to a company doctor. What advice would you have for us? This is a new situation and we are unsure how to deal with it.

thank you,
Glen

If he has a certificate for the leave and is making an effort to attend work and undertake his role then it is something you are going to have to manage for a while. I assume he is on a probation/qualifying period in his contract? If it continues you could dismiss him within the 6mth qualifying period due to his inability to perform all the requirements of the role but be careful how you word everything.

And fix your policies and procedures :)

Hi Glen,

As is often the case, one really needs to look into the individual circumstances of the case, however, a few guiding principles have obvious application here.

1. Is the role of the person who is unwell one that is normally understood to require attendance at client sites? Is there a position description that details this? You need to establish that attendance at client sites is one of the essential duties of the role. This may be self-evident for a role of an OH&S Manager, but not so for a role of an Administrative Assistant.

2. Typically, if an employee is not able to perform the inherent requirements of the role due to illness or injury, that person can be lawfully dismissed, but not before the employer has tried to assist in the matter (say by offering support to make the employee better, or by re-deployment, etc, as appropriate), and not before a reasonable amount of time has passed.

3. The employer would be expected to engage the sick employee in discourse and to document the facts of the matter, including assistance offered by the employer to the employee.

4. Normally, a reasonable amount of time in which an employee may be on leave for illness will range from about 60 to 90 days, depending on the employee's role and the means of organisation.

5. Do you have an employee assistance programme? What is the nature of the matter that is making the employee ill? Is it likely that it will be resolved in a reasonable amount of time, or is it not?

6. If you dismiss the employee within the qualifying period of 6 or 12 months, he or she may be able to seek a civil remedy under section 352 of the Fair Work Act, so be careful, and above all, be fair.

Again, the employer needs to regularly communicate with the employee about his or her condition, and must provide support as far as reasonable.

Kam Radzikowski

Hi Glen

Whilst this advice may not be the case because a qualifying period exists The Fair Work Act 2009 (Cth) prohibits the termination of an employee for certain reasons, and one of those reasons is where an employee is temporarily absence from work because of illness or injury.

However, for an employee to 'technically' be absent from work because of illness or injury, the employee must provide you with a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within:

• 24 hours after the commencement of the absence; or
• such longer period as is reasonable in the circumstances.

If the employee fails to do this, then theoretically you may be able to terminate the employee whilst he or she is absent without contravening this part of the law.

One other important point to note is that, if the absent employee is not being paid personal carer's leave during the absence (possibly because they have used up all of that leave), and:

• the employee's absence extends for more than 3 months; or
• the total absences of the employee, within a 12 month period, have been more than 3 months

If this is the case you may be able to terminate the employee without contravening this part of the Act.

You must still show procedural fairness. Contract of employment may be validly terminated on the basis of an employee’s illness when that illness has demonstrated an adverse impact on the employee to perform the inherent requirements of their job.

If the employee demonstrates they are able to perform the duties and responsibilities of their job, even after a period of absence from work, a termination of employment will not be valid and will be harsh and unreasonable.

Procedural fairness would begin with firstly a discussion with the affected employee to identify their long term prospects of returning to work and carrying out the inherent requirements of the role.

This discussion would need to be evidenced by medical advice.

Hope this helps with updating your Policies and Procedures.

Jodie

I had this happen. We let the person go. They were not fulfilling their contract. Came to work the first day, sick the second - did not bother to call, then sick a few more days. Must be within your probationary period I think.