Employment

Employers' legal obligations when managing absenteeism

28 March 2003

Employers who aren’t 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 yesterday’s 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 employee’s 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...