With the Christmas period approaching, some employees may be tempted to extend their time off by 'chucking a sickie' and taking personal leave before or after public holidays. While occasional personal days are common, employers often face challenges when absences appear to be for non-genuine reasons.
This blog post outlines legal requirements, best practices and practical steps for managing such situations.
The Fair Work Act (the FW Act) and the National Employment Standards (NES) make it clear that employers can require notification from employees of any absence and evidence to support any personal leave they take. However, there is no provision within the FW Act for employers to deduct payment for a public holiday to deter employees from being absent on the day or days adjacent to a public holiday.
Under the FW Act an employee is not entitled topaid personal leave unless they:
Except where it is impractical to do so, employees should be required to contact their line manager or supervisor if they are unable to come to work for any reason. Notification should occur prior to the employee’s normal start time, or as early as possible.
The preferred method of contact for notification, for example calling to speak with someone, sending a text message or emailing, is largely up to the organisation to decide. It is easier, however, for an employee to avoid stating the reason for their non-attendance if they can simply leave a message with reception or a work colleague. Contacting a supervisor or manager may therefore be more effective in reducing questionable absences.
Managers should ensure they follow up on any absence and, where necessary, seek the relevant evidence required. Most commonly this would be a medical certificate or statutory declaration. Under the NES, employees are only required to provide evidence where requested by their employer. So, it is important that the organisation sets out when evidence will be required and what documentation is expected in a policy (see below).
To discourage employees from taking non-genuine absences companies are advised to have appropriate policies in place and to emphasise the expected requirements in employee contracts and, if applicable, enterprise agreements.
An organisation may formalise their approach as part of an overall Leave Policy or, alternatively, they can develop a separate Attendance Management Policy.
One benefit of a thorough policy is that it can address absence, presenteeism, tardiness, failure to notify of an absence and leaving early all in the one document. It can also prevent misconceptions about acceptable behaviour.
No matter its form, the policy should set out clear expectations of attendance standards including notification and evidence requirements and systematic procedures for investigating and managing absence.
It is really up to each company how flexible they are with their policies, and it is common to allow a certain number of days of personal leave absence before documentary evidence is required. To discourage employees who are tempted to take extended long weekends it is recommended to always seek evidence for personal leave days taken before or after a public holiday.
If absences occur around a public holiday, make sure managers engage with each employee who has taken leave once they are back at work.
Research has found that having such conversations after unscheduled absences can have a real impact on reducing absenteeism. However, it is important that managers display a supportive and non-judgemental approach and respect the employee’s right to privacy (keeping in mind that an employer can question an employee’s fitness for work).
These chats do not have to be formal and can simply be a brief discussion with an employee who has taken a sick day. Managers may wish to welcome the employee back and enquire as to whether they are feeling better.
It shows the employee the organisation cares about their wellbeing but also signals that the absence was noticed. In a workplace with low levels of management interaction, some employees may be inclined to take more days off if they feel that absences will not be noticed or questioned upon their return.
If a manager is suspicious that an employee is not genuinely ill the options are limited, especially if the employee has submitted a medical certificate. Without strong evidence, challenging the veracity of a medical certificate is not recommended and may damage the workplace relationship.
Even if the employee does not supply documentary evidence there may well be extenuating circumstances (for example, their doctor had no available appointments) so organisations should make sure they are flexible and give the employee the opportunity to provide an explanation.
Of course, if the employee has failed to provide appropriate notification or documentation for their absence (and provides no valid reasons for not doing so) then employers are well within their rights to withhold payment for personal leave.
Australian Industry Group's National Employment Standards Handbook provides helpful and practical information on all the National Employment Standard (NES) entitlements (such as public holidays and personal/carer's leave) and how to successfully manage them.
The handbook includes includes guidance on the interaction of the NES with industrial instruments and common award clauses, case examples, notice and documentary requirements, information on transfer of business and record keeping obligations and much more.
The accompanying updating subscription for this publication makes sure you stay up to date when legislative changes or case law developments occur.
The NES apply to every employee so don't wait, order your copy now and be confident in applying the NES in your workplace!
Putting in place a recording and monitoring system to track employee attendance and alert management to any pre-defined patterns of absence (or ‘trigger points’) greatly assists an organisation in knowing when absenteeism might be an issue. Examples of trigger points may be an employee that regularly takes the Friday off before a long weekend or staff who frequently have unsupported absences.
Where an employee has reached a trigger point it may be an early indication of a problem so the relevant manager should initially discuss the employee’s attendance record with them informally, making sure to actively listen to what they have to say.
If the pattern of absence continues, or behaviour that is in breach of a policy occurs (for example, multiple absences without adequate notice being provided), then it may be time to escalate the issue to a formal discussion.
Members can call the Australian Industry Group Workplace Advice Line on 1300 55 66 77 for further information about personal leave, attendance management or any workplace matter.
Take advantage of more than 150 years of experience actively solving Members’ workplace issues and representing their interests at the highest levels of national and state government. Being a Member of Australian Industry Group makes good business sense. Call us on 1300 55 66 77 or visit our Why join page to sign up for a consultation with one of our member representatives.
Clinton is the Publications Manager at the Australian Industry Group.
He is responsible for a number of key services including Annotated Modern Awards, Workplace Relations Handbooks and the management of Ai Group’s HR and Health & Safety Resource Centres.
Clinton has a master's in Employment Relations and previously held advisory roles with the Workplace Authority and Department of Employment and Workplace Relations.
