By: Clare Dewan and Associates
This presentation is subject to copyright and is not
to be reproduced except by express permission





Employees are often absent from work for a
number of reasons, and each of these must be
managed differently. Employees can be absent
in circumstances which include the following:
- Excessive absences (paid and unpaid)
- Work cover
- “Stress Leave”
- Sick leave, including paid and unpaid, on a
long term basis




- Abandonment of employment
-Unauthorized Absence
-Leaving a shift without permission of the
manager or nominated superior
- Late or no notification of a failure to attend
shifts

- Managing these situations requires different
management tools, but each situation needs to
dealt with if the absences are causing issues in
running the facility, inclusive of incurring costs
of employing agency staff



-Employees are entitled to take sick leave
where there is a genuine need to do so
-Where and employee is taking excessive time
off without seeming to be ill, or in a predicable
pattern, an employer is entitled to request
details of the reason for the absences
- An employer is entitled to take the matter to a
formal meeting if there are unexplained or
excessive absences
- The employer needs to write to the employee
requiring their attendance at a meeting with
the details of the absences provided
- where an employee has taken so much sick leave
so as to have no paid entitlements left,
employers should avoid allowing them to take
any other leave, such as annual leave, without
understanding why so much leave has been
taken.



- The most important issue where a work cover
claim has been made is the ground work done
as soon as the claim is made
- It is essential that the manager on site is able
to provide a clear report on the circumstances
leading up to the claim particularly where an
employer wants the insurer to deny the claim


- The report needs to be done so as the events
are in chronological order, and the report
should be sent to the insurer with a covering
letter to a nominated person at the insurer’s
office
- It is essential that a person in authority and
with knowledge of the claim attend any
conciliations and that the claim is managed
from the date the claim is received
Employers who are trying to manage difficult
situations should be aware that if an employee
claims “Stress” leave after an attempt to
counsel or informally deal with workplace
issues, the next attempt needs to be formal
- If an employee is on sick leave, it is generally
advisable to avoid the commencement of
disciplinary procedures




- There are instances where an employer may
refuse to accept a sick leave claim
- This would include where it seems clear that
an employee has made the claim to avoid , for
example, a disciplinary meeting that has been
properly organised.
Where the employee has claimed sick leave
leave after annual leave has been refused



- An employee who is not dealt with
appropriately while claiming sick leave may be
able to make a claim of adverse action
For example, they may say that they are being
acted against simply because they were
pursing the right to take sick leave
- If an employee makes a claim of adverse
action the onus is on the employer to prove
otherwise


- Employees can sometimes be on long term
absences due to illness or injury, which may or
may not be work related
- In the case of a non work related absence, the
employer is able to take action to terminate the
employees employment after the employee has
been absent in excess of three months on
unpaid leave


- After a three month absence on unpaid leave,
or an aggregate of 3 months in a twelve month
period, the leave is no longer deemed to be
“temporary” under the Fair work Act and
therefore it would not be unlawful to
terminate
- There is still a requirement that the
termination not be harsh, unjust or
unreasonable


- An employer who wishes to ascertain the
employee’s intentions to return to work after
this three month absence must write to the
employee advising them of the matter to be
discussed and the meeting details and what the
end result of the meeting may be
- In the case of an absence on work cover,
employers have an obligation to keep the job
open for a period of no less than 12 months


- Employers need to check with the insurer as
to the viability of terminating an employee’s
employment at this stage
- If the employer wishes to move to terminate
an employee’s employment when on work
cover, a letter has to be written and the
opportunity to attend a meeting to discuss the
matter provided


- Abandonment of employment should not be
confused with a situation where an employee
leaves their shift before finishing time without
permission
- An employee can be considered to have
abandoned their job in circumstances where
they simply do not report to work for days and
make no contact


- Examples of this include employees not
returning from annual leave as per roster,
being on sick leave without medical certificates
or without contacting the facility
- Employers need to write to the employee
asking that they make contact by a set time and
date, and that a failure to do so will be seen a
an abandonment of employment. Do not say
their employment will be terminated

- If the employee has abandoned their
employment that is what they are told in
writing and this then becomes a technicality in
any attempt to claim unfair dismissal


- This is an absence where an employee takes
leave for which they have not had
authorization
- The most common example is where a staff
member has been on annual leave but fails to
return on the set date and fails to make any
contact with the facility


- Another example is where an employee has
requested annual leave over the Christmas/
New Year period and when it is refused, takes
it anyway
- The issue may end up being that they took
unauthorised leave effectively abandoning
their employment, but each situation is
different



- This occurs in varying circumstances which
requires varying responses
- At times this action may be deemed as serious
misconduct, others it is not
- Examples of where this behaviour occurs is
where the employee does not like a co-worker,
an employee has an argument with someone,
they do like the section of the facility they are
rostered to work in

- Where an employee is constantly failing to
allow enough time for an employer to find a
replacement, or where they fail to advise they
will not be attending work, disciplinary action
is able to be taken



- The vast majority of aged care providers in
Victoria have enterprise agreements which
contain disciplinary provisions
- Employers need to ensure these are reflected
in policy and procedure
- employers need to have reference to what
may be seen as serious misconduct in their
contracts of Employment which must be signed
prior to employment


- Our clients’ agreements allow for three
warnings on matters not seen as serious
misconduct and summary dismissal where
matters are deemed to be serious misconduct
The agreements also have provision for a final
warning only to be issued in matters that are
deemed to be serious misconduct


- A final warning should be issued only where
the employee has been suspended on pay and
threatened with the termination of their
employment
- Employers need to ensure that they afford
procedural fairness to employees. Examples of
what is NOT procedurally fair include the
following:


- calling an employee into an office, advising
them there are serious concerns with their
work practices and expecting them to respond
instantly
- Not providing an employee with the evidence
you intend to rely on in a matter (save for the
whistle blowers in an resident abuse matter)



- Not allowing a representative to act as such,
rather referring to them as a support person
who has no right to speak
- Not giving due consideration to responses
given
- the process itself is not complicated, but it
must be followed with the appropriate
correspondence, appropriate wording with the
person conducting the interview having the
necessary skill base and ability




When writing letters to attend disciplinary
meetings you need to ensure:
- that you advise the employee of the
allegations
- that the employee is advised to bring a
representative
- that the employee is advised as to what



the outcome of the meeting may be
- that the employee is advised what will
happen if they fail to attend the meeting or to
make suitable alternate arrangements
- that the employee is provided with copies of
statements and/or relevant documentation
upon which you will rely.