Employees Using Sick Leave to Avoid Disciplinary Meetings

It is not uncommon that employees disappear on personal (sick) leave when they are required to attend a disciplinary process. The question arises as to what the employer can do in these circumstances and whether a termination can actually occur whilst the employee is absent.

A recent unfair dismissal case in the Fair Work Commission has clarified what an employer can do in such circumstances and simply looked at the requirements under the legislation when deciding whether a termination is unfair or not.

The case involved a manager who was not performing and whose conduct was called into question. The Commissioner found that there was a valid reason for the termination, and the employee had an opportunity to respond to the allegations and had done so before going on sick leave. The commissioner quite clearly says at the end of the ruling that you can dismiss someone whilst they are on sick leave. It should be noted, however, that it’s unlawful to dismiss someone because they’re on sick leave.

The employer had followed the procedural requirements, that is advised the employee of its concerns and gave the employee the opportunity to respond. The Commissioner pointed out that if the employer had waited until the sick leave ended it would just delay the decision that had already been lawfully made.

If an employee goes on sick leave before you have had a meeting and thus has not had the opportunity to respond to the employer’s concerns, there are a couple of steps the employer can take. Firstly, the employee must be able to justify their absence, that is, satisfy a reasonable person that they need the sick leave. Secondly, you can ask the employee to provide written advice from their doctor as to how long they will be away and whether the employee is capable of attending a meeting, or whether the employee is capable of replying in writing to the concerns expressed.

If the employee fails to participate and you’ve taken one or a number of these steps, and the employee just says no to all of them, then you can look at something called ‘failure to follow a lawful and reasonable direction’ which is its own separate disciplinary matter.

Andrew is available to assist members in any disciplinary process and can attend on site if necessary.