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Ongoing sick leave case ends in adverse action loss for employer: how a strong workplace culture can prevent unnecessary absenteeism

Companies with poor workplace cultures often experience high levels of absenteeism, including sick leave.

Many employers and managers would have noted a staff member taking what appears to be more than their share of sick leave. One question to ask is: are these absences related to workplace culture? 

Furthermore, when taking action on issues related to sick leave, care is required, as abiding by workplace laws is crucial to avoid costly legal action.

Recently, a Melbourne hotelier was found by a Court to have taken adverse action against an events manager when she took sick leave to manage her workplace-driven anxiety.

The Federal Circuit Court found that the substantial and operative reasons for the hotel event manager's dismissal in August 2014 was her exercising of workplace rights, including accessing her entitlements to paid sick leave under s352 of the Fair Work Act, pursuing a workers' compensation claim under the Accident Compensation Act 1985 and making inquiries about her employment.

The event manager took sick leave after being reprimanded for booking a function for 150 people in the lead-up to the AFL Grand Final. The director told her she shouldn't have made the booking and when she asked him for guidance about making large bookings, he refused and allegedly replied, "I can't do my effing (sic) job and yours as well".

The events manager indicated that she had not received appropriate training and, despite continued requests for further training, the events manager claimed that the director told her to rethink her career path.

The events manager asked “Do you want me to resign? ... I’m not sure what you wanted...” The director responded, “No, I didn’t say that. I just think you need to give thought to where you’re at.”

She was so distressed by the conversation that she attended her GP for advice on how to manage her anxiety and was given a medical certificate recommending a week's sick leave. When she told the director about the leave, he responded in an email entitled "without prejudice", saying he was "sorry to hear of this development, as recent as it is; particularly given there were no signs of this when you left work."  The director's email allegedly compounded the event manager's distress further, because she feared she was "in trouble" at work and would be "treated even worse" upon her return.

When she returned to her GP, she was advised to take another week off work because her symptoms had persisted.  The events manager told the director via email of the further period of leave and couldn't say when she was likely to return.

Within ten minutes of the event manager's email, the director replied, noting that her paid sick leave had been exhausted, any workers' compensation claim would "likely be rejected" and requesting that he be granted authority to speak with her GP for more details about her medical condition.

The director argued that he required these details to facilitate her return to work. The email also warned that if she failed to follow these requests, disciplinary action, including dismissal, would be warranted.  The events manager didn't want her medical history made available to her employer because her anxiety had been triggered by alleged sexual harassment in the workplace by another colleague and then exacerbated by the director's conduct towards her.

Instead, she sought legal advice from a lawyer, who responded on her behalf that she wouldn't be returning until further notice.  On the next day, the director replied to the lawyer's email, saying the response was "highly unsatisfactory" and that the event manager's failure to help with her return to work provided grounds for dismissal.

The email stated that, as a "further gesture", it would re-employ the event manager if she provided satisfactory medical information about her capacity to return to work, but the judge said this was a disingenuous offer. The judge indicated that while the director might have wanted certainty about when the events manager would return, this did not explain his decision to include in the email reference to a possible WorkCover claim, a demand that he be permitted to speak with her treating GP and a warning that failure to do so could jeopardise her employment.

The judge was also critical of the director providing instructions to an employee on sick leave.

"Delivering an instruction to an employee, who is absent or has been absent on sick leave due to illness or injury, to allow an employer to speak to her treating medical practitioner, regarding that illness or injury, is by any standards not the industrial norm, and is in my opinion, unreasonable," said the Judge.

The judge said the events surrounding the leave occurred against a backdrop of suspicion of the employee's motives, which led to the "irresistible conclusion" these were the substantial and operative reasons for her dismissal.

The events manager’s sick leave could arguably be seen in the context of anxiety created by the workplace culture, specifically the previous alleged sexual harassment and her director’s brusque refusal to help her manage her performance.

iHR Australia’s Director of Workplace Relations Mr John Boardman said that the case demonstrates the need for caution when contacting employees on sick leave and requiring them to provide information regarding their illness. It really depends on the particular circumstances and whether the direction given by the employer is lawful and reasonable. Where an employee has been on long term sick leave and only provides a certificate indicating that they are unfit without any further information it would be reasonable for an employer to direct the employee to see a medical practitioner of the employer’s choosing for assessment in relation to their fitness for work and the period of time their incapacity is likely to continue. A refusal to comply with this direction might be grounds for termination of employment, Mr Boardman said.

The Fair Work Ombudsman indicates employees can take as much paid sick leave as they have accumulated to get better from an injury or illness.  An employee can’t be fired because they are sick. When an employee has run out of paid sick leave, they can take unpaid leave if they aren't fit for work because they are sick or injured.

If the employee is on unpaid sick leave, they can’t be fired if:

  • they have been away for three months or less; and
  • they provide evidence of their illness or injury.

If an employee has used all their accumulated sick leave and is on unpaid leave for more than three months and they are dismissed by their employer, the termination is not automatically unlawful. The three month absence can include a combination of paid sick leave and unpaid leave over a twelve month period.

The normal rules for a termination still apply and the employee may dispute the termination by:

  • making an unfair dismissal application if the reason for the dismissal is harsh, unjust or unreasonable or
  • making a general protections claim if the reason for the dismissal is because of the employee’s disability.

A genuine focus on creating a positive, best-practice workplace culture may prevent cases such as this, involving sick leave, subsequent dismissal and expensive and time-consuming Court cases.

iHR offers training courses that will help build a positive, best practice workplace culture and enable managers to give effective performance feedback to staff.

I'm a Leader I'm a Coach leadership training helps workplace leaders to recognise the important role they also can play as a coach. Effective modern leaders work to increase the performance of teams and individuals, and to retain high-calibre employees.

Managing Team Performance will help participants to build the competence and confidence to effectively manage staff performance within the workplace.

Anti -Discrimination and Bullying for Managers focuses on the manager’s responsibility as the custodians of your organisation's workplace culture and the key elements of the manager's role in preventing and effectively managing bullying, harassment and discrimination issues in the workplace. Participants will have the opportunity to explore and apply effective leadership techniques and will learn about three leadership styles that heighten the risk of workplace issues and potential litigation.

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