We often have employee's taking a sick day before or after a public holiday. Is there anything we can do?
The race that stops a nation, the Melbourne Cup, will be run next Tuesday presenting an opportunity for employees to have an extended long weekend.
Unfortunately some may choose to ‘chuck a sickie’ on the Monday (or even the Wednesday). In doing so they are taking leave for non-genuine purposes. Most employees have taken a personal day when they haven’t been ill at one time or another, but is there anything employers can do when this occurs adjacent to a public holiday?
The Fair Work Act (the FW Act) and the 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 in order to deter employees from being absent on the day or days adjacent to a public holiday.
Despite this there are a number of options available that may help reduce or control the issue.
Under the FW Act an employee is not entitled to 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.
Whether an employee must speak with someone or send a text message or email 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 are able to 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. It is important that the organisation sets out in a policy (see below) and/or contract of employment what documentation is expected.
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 an Attendance Management 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.
Ai Group's Absenteeism & Presenteeism Survey Report 2015 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 serves to show 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 suspiciousthat an employee is not genuinely ill the options are limited, especially if the employeehas submitted a medical certificate. Without strong evidence, challenging the veracity of a medical certificate is not recommended and may damage the workplacerelationship.
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.
Puttingin place a recording and monitoring system to track employee attendanceand 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 policyoccurs (for example, multiple absences without adequate notice being provided), then it may be time to escalate the issue to a formal counselling session.
Please call the Ai Group Workplace Advice Line on 1300 55 66 77 for further information about personal leave or attendance management.
Clinton is the Publications Manager at Ai 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 Masters in Employment Relations and previously held advisory roles with the Workplace Authority and Fair Work Ombudsman.
