Employers' legal obligations when managing absenteeism

28 March 2003

Employers who arent scrupulous about carrying out due processes before dismissing a staff member, who they believe has abandoned their employment, can leave themselves open to a range of legal actions.

Speaking at yesterdays ACIRRT conference on absenteeism, Cutler, Hughes & Harris lawyer Helen Carayannis said it is important for employers' to make genuine attempts to contact the employee and make pertinent enquiries as to the circumstances giving rise to the prolonged absence.

According to Carayannis, recent studies have shown that an increasing number of unscheduled absences by employees are non-sickness related genuine personal illnesses accounts for just one-third of unscheduled absences. A recent Australian study found that other reasons for absences from work included family issues (24%), personal needs (21%) and stress (12%).

Identifying the reasons why an employee is off work and addressing any workplace issues that may be factors in the employees absence can help the employer avoid a range of legal actions, she said. These include unlawful discrimination on various grounds (including family responsibilities), bullying and harassment claims, common law actions for psychological harm resulting from work in a stressful environment, unfair dismissal and unfair contracts claims.

Absenteeism is often caused by internal work conflict, Carayannis noted. If employees who are constantly being harassed, bullied or intimidated are frequently taking time off work, the employer must take all steps reasonably necessary to ascertain what the problem is and then attempt to resolve it.

It is not sufficient for an employer to simply write a letter to the employee *who has absented themselves from work without explanation] stating they are being dismissed, without first consulting with the employee, seeking reasons for the delay for the return to work and then considering the options, Carayannis said.

In order to minimise the risk of a termination being considered harsh, unjust or unreasonable (that is unfair), an employer must ensure that a valid reason for termination existsIn cases where absenteeism is the primary issue, the question will be dependent on many facts, including the extent of absence, the reasons for absences, and whether the termination process was in accordance with procedural fairness requirements.

Develop a consistent system

Carayannis says one of the simplest ways employers can minimise the risk of legal action is to adopt a consistent system for dealing with absenteeism, and to ensure that each employee is not only aware of it but understand the policy or process fully.

A good absenteeism policy would include the following: Clearly specifies when an employee can take time off (e.g. statutory holidays, sickness, bereavement etc).

Establishes definite standards and is as specific as possible, including specific procedures for claims forms, when medical certificates are required, etc.

States when disciplinary procedures will be implemented for persistent absenteeism.

Includes a process for a meeting between employee and employer to be initiated so explanations for absences can be sought.

Emphasises an evidence approach to managing absenteeism problems: this may involve pro forma letter and record forms for managers to complete and sign when undertaking formal absence reviews. Formal processes could also include agreed targets for the employee to improve attendance over an agreed period of time.

Obliges managers to remind employees of their attendance obligations and to keep records of such conversations.

Obliges managers to make every effort to contact employees who are absent without explanation. If such efforts are unsuccessful, letters should be couriered to the employee requiring their attendance at a meeting and an explanation for their absence.

Carayannis said that if the employee appears to have genuinely abandoned their employment, it is wise to ask a lawyer to confirm that you have carried out your employer duties before initiating dismissal.