Flu season has definitely set, but what happens when your employee is absent for months?
Our Industrial Relations Specialists receive calls every week from employers who are considering terminating an employee based on legislation they have read (Fair Work Regulations 2009 (Cth) Regulation 3.01).
3.01 Temporary absence—illness or injury
(5) An illness or injury is not a prescribed kind of illness or injury if:
(i) the employee’s absence extends for more than 3 months; or
(ii) the total absences of the employee, within a 12-month period, have been more than 3 months (whether based on a single illness or injury or separate illnesses or injuries); and
(b) the employee is not on paid personal/carer’s leave (however described) for a purpose mentioned in paragraph 97(a) of the Act for the duration of the absence.
(6) In this regulation, a period of paid personal/carer’s leave (however described) for a purpose mentioned in paragraph 97(a) of the Act does not include a period when the employee is absent from work while receiving compensation under a law of the Commonwealth, a State or a Territory that is about workers’ compensation.
Too often our Industrial Relations Specialists talk to employers who have incorrectly interpreted this regulation as grounds for instant dismissal, without understanding the regulation and the associated risks of interpreting the regulation incorrectly.
Some of the most common oversights our Industrial Relations Specialists discuss with employers include:
- Failure to consider personal/carer’s leave taken by an employee during absences of more than 3 months or more than 3 months in a 12-month period;
- Failing to consider whether the employee has provided evidence to support their taking of personal/carer’s leave;
- Misconception that an employee absence while receiving workers compensation is considered to be on paid personal leave;
- Employers interpreting the regulation as grounds for instant or summary dismissal.
The risks associated with terminating an employee through misunderstanding the regulation or not following the correct process can include:
- Unfair dismissal applications;
- General protections claims;
- Claims under anti-discrimination laws.
Our Helpful HR Friday tip for employers is to give consideration to the following checklist when considering whether there are grounds to terminate an employee under Regulation 3.01.
1. Check whether an absence of 3 months includes any periods of personal/carer’s leave and whether evidence has been provided to support the taking of their personal/carer’s leave.
Absences of 3 month which include periods of personal/carer’s leave for which the employee has provided evidence are considered a prescribed kind of illness or injury as per regulation 3.01. Under section 352 of the Fair Work Act 2009 (Cth) an employer must not dismiss an employee because of a temporary absence due to a prescribed kind of illness or injury.
Where an employee does not provide the required evidence, they are not considered to be absent due to a prescribed illness or injury and are not protected by section 352 of the Fair Work Act 2009 (Cth).
2. Check whether the employee has received workers compensation payments during the preceding 12 months of employment.
Workers compensation payments are not paid personal/carer’s leave. However, under section 232B of the Workers Compensation and Rehabilitation Act 2003 (Qld) employers must not dismiss a worker within 12 months after a worker sustains an injury solely because the worker is not fit for employment as a result of an injury.
3. Check that there are grounds for termination and follow the correct termination process.
Due to the risks associated with terminating employees, our Industrial Relations Specialists strongly encourage all employers to seek advice to ensure they have properly understood their obligations and ensured they have grounds for termination.
Where there are grounds for termination, employers must ensure a fair process is followed.