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Chucking a sickie: What amounts to 'temporary absence'?

Chucking a sickie: What amounts to 'temporary absence'?

We've all had them. That employee who's constantly off sick, sending everyone else's working day into disarray. But what can you do about it? Here's what you need to know about "temporary absence" protections.

It’s an all too common complaint – one that REEF’s Workplace Relations Advisors hear almost daily from real estate employers calling the Helpline.

“They’re constantly taking a day here and a day there, and it’s just too disruptive,” some employers tell us.

“They’re often away for days at a time and it’s impacting the rest of the team,” others say.

Then comes the inevitable question: “Can I dismiss them?”

While an employee who is continually off sick can create real anxiety for both employers and other staff members, it’s important to remember that there are statutory protections in place under the Fair Work Act 2009. These protections prohibit the termination of an employee because of absence from work due to illness or injury. There are also protections under Commonwealth, State and Territory discrimination laws.

 

Temporary absence

The “temporary absence” protection under the Fair Work Act raises its head most often. This protection provides that “an employer must not dismiss an employee because he or she is temporarily absent from work [due to] illness or injury”.

If the period of absence exceeds this and at least part of the absence is not paid sick leave, then the employee is not afforded the temporary absence protection.

But, as most of us would agree, three months of absences over the course of 12 months is a long time for an employee to have protection against dismissal. In the meantime, the employer is left pulling their hair out as they seek to manage inadequate resources. And let’s not forget the impact on other staff. With increased workloads, they can quickly become annoyed and start to blame management for failing to take any action.

However, you’ll be flirting with danger if you take any action against an employee in circumstances where the temporary absence protection applies. A “general protections” claim can potentially result in significant financial penalties being imposed against the employer.

After the three month protections period has elapsed, an employer is in the position to terminate the employee’s employment – provided there is a valid reason to do so. This may include the employee’s inability to carry out the inherent requirements of the job.

 

Key message for employers

Managing an employee who is constantly absent or on sick leave is always problematic. In general, you shouldn’t dismiss an employee who is absent from work due to personal illness or injury if the reason for the dismissal is based on that absence.

 

Questions?

Before you consider taking action against an employee due to regular absences from work, call the REEF Helpline on 1300 616 170. One of our Workplace Relations Advisors will be able to guide you.



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About REEF

The Real Estate Employers' Federation is the real estate industry’s leading not-for-profit employer and workplace relations advisory association. It has more than 1600 members and subscribers across Australia.

Each year, REEF receives more than 15,000 calls from real estate employers needing help and guidance on matters affecting the employment relationship.

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  •  Level 6, 99 Bathurst Street,
     Sydney  NSW   2000
           Australia

  •   1300 616 170

  •   02 9261 2622

  •   admin@reef.org.au

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