Emil Ford Lawyers

Employee Absenteeism - When absence does not make the heart grow fonder

Click here to subscribe to Not-for-Profit Law NotesEmployers can be reluctant to confront employees where they take personal/carer’s leave or compassionate leave in suspicious circumstances. Similarly, employers may become frustrated by a pattern of behaviour such as regularly arriving to work late and leaving work early without ever directly raising these issues with their employee. In both circumstances, the employer loses money and productive working hours, which can build resentment and dissatisfaction with an employee’s performance. Consequently, employers can reach the point where they wish to terminate an underperforming employee without having justified grounds for dismissal under the Fair Work Act 2009.

The decisions of the Fair Work Commission in relation to the unfair dismissal provisions of the Fair Work Act 2009 emphasise procedural fairness and the need for clear communication between employers and employees. Employers should therefore be proactive in identifying and expressing issues with an employee’s performance at an early stage, rather than allowing resentment to grow. If an employer reaches a point where they wish to terminate an employee, it is in their favour if they have previously raised performance issues with an employee and given them an opportunity to respond and improve their performance.

Image of a mobile phone with a text message "where are you?" on screen "In relation to the abuse of leave entitlements, employers are entitled to query leave taken in suspicious circumstances."

In relation to the abuse of leave entitlements, employers are entitled to query leave taken in suspicious circumstances. This was illustrated in a recent decision of the Federal Circuit Court. In this case, the Employee was granted compassionate leave following the death of her grandfather. Six weeks after this, the Employee requested an additional day’s compassionate leave to attend the memorial service, supporting her application with a copy of the death notice. Her Employer challenged this and requested she provide further supporting evidence such as evidence of the service. The Employer also gave her a final warning letter, which followed previous warnings relating to her poor attitude and performance. The Employee did not return to work and later filed a claim for adverse action, claiming that her Employer had wrongfully terminated her for exercising a workplace right. The Court found against the Employee, noting her failure to provide the evidence requested by her Employer and noting that the final warning letter demonstrated a willingness by the Employer to continue the contract of employment provided that the Employee addressed the issues with her performance.

For employers, this decision provides helpful guidance regarding how employers should interact with difficult employees. In particular, there are two clear advantages to raising performance and conduct issues with an employee at an early point. Firstly, an employee might respond and improve their performance. If not, although there are other factors that must also be taken into consideration, having previously discussed performance issues, the employer will be in a better position to terminate a difficult employee at a later stage.

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