Business is humming along nicely, and everyone seems to be focused and productive, then BAM, an employee has a non-work related injury and needs to have a substantial period of time off work. It’s always the way when things are running smoothly, but you have to take a beat and think: What do I do now?

The answer is (like most workplace matters in Australia) …. It depends!

You'll need to consider

1. Is there a relatively clear idea of when the employee will be/might be able to return to work?
   
2. How much accrued personal leave does the employee have?

Case Study 1:

Long-Term Injury and Personal Leave Entitlements

Let’s say your employee of 10 years has a motorcycle accident and shatters her knee and breaks a few other bones as well. She advises you that her doctor has stated that it will be at least 3 months of recovery before she would be able to contemplate returning to work on modified duties. The doctor provides written notice of this as well. 

The injured employee has 88 days of paid personal leave available due to limited leave use and long tenure in the business, meaning she has more than enough leave to cover her initial recovery period. This allows you, as the employer, to create a clear plan to temporarily backfill her role and maintain business continuity.

You can consider a number of options:

1. Redistribute the absent employees’ duties for a period among other employees with capacity
2. Second another employee into her role temporarily as a learning and development opportunity
3. Use a labour hire company to back fill the role temporarily
4. Recruit a replacement on a short, fixed term contract

Most importantly, the employees’ employment cannot be placed in jeopardy as she has a workplace right to be unwell or injured and not be able to attend work. Notably, in this case, she has plenty of paid personal leave to cover the absence. 

As it is a non-work related injury, you won’t have obligations to return her to work on modified duties or at all until she is able to perform her full pre-injury role. However, an employee with 10 years tenure is likely to have great value to the business and we would recommend working with her to return in a way that is a manageable for her, while suitable and appropriate for the business as well. 

Even though it is a non-workplace injury, it is still appropriate to make some reasonable modifications to get the employee back to work.

Case Study 2:

Short-Service Employee and Ongoing Sick Leave

You have an employee with under one years’ service and who has been settling in quite well, when suddenly he takes two weeks of personal (sick leave) due to a ‘medical condition’. He provides a medical certificate simply stating ‘unfit for work’ and he provides no details as to the illness or injury. 

As the employer, at this stage you are unable to request further information, or you can, but he has no obligation to provide it as he is entitled to his privacy. This illness uses all of his accrued sick leave, and two days of his accrued annual leave which he asked to have applied to the shortfall. 

This employee returns to work for a few days and then advises he is unwell again and provides a medical certificate stating only ‘unfit for work’ for a further two week period. The employee has no paid sick leave entitlements left, so now he is on a period of unpaid leave. He may ask if he can access his annual leave entitlements to support him financially through this period, and employers should generally view this as a reasonable request and approve. However, the time is still considered a period of unpaid sick leave (and not a period of approved annual leave).

The pattern continues over the next 6 weeks – the employee providing medical certificates for a two week period simply stating that he is unfit for work, and no details are being provided. In one brief conversation the employee indicates he is suffering from a mental health condition. 

Not only are situations like this incredibly frustrating, it’s also difficult to plan to backfill an employee’s role when you have no clear information about the nature of the illness or injury or a likely return to work timeframe.  Impacts are significant on business operations, service delivery and often, on team morale as well. 

So, what can you do? 

1. You can request that the employee attend an independent medical examiner to provide you with more information as to the nature of the illness or injury and/or a prognosis of likely return to work. You need to pay for this.
   
   
2. You can request more information from the employee’s treating practitioner about the nature of the illness or injury. This can include information about their likely recovery period, any modifications that could be made to support their return to work and a prognosis for return to full duties. As the requesting employer, you will need  to provide a letter and an assessment form to the employee to supply to their medical team. 
   Medical Privacy: An employee cannot be made to provide personal information but are obligated to follow lawful and reasonable direction to provide you with more information when requested, especially regarding a likely time frame to return to work. You should pay for the employees’ appointment to secure this information. 

Both of the above two options can provide you with information that may help you decide how best to move forward to maintain business operations and service levels. 

Termination of Employment Under the Fair Work Act

Under the Fair Work Act, once an employee can not perform the inherent requirements of their role for a period of three consecutive months, or for three months within a 12 month period, you have the right to terminate their employment. 

The clock on this three month period starts at the time their accrued paid personal leave entitlements are exhausted. Even if you allow access to other paid leave entitlements such as annual leave or long service leave to support them through this period, it is still deemed an unplanned absence due to illness or injury. 

We recommend handling this type of termination with caution.  In most cases, it is best practice to issue a ‘show cause’ letter before making your final determination. This letter should clearly outline your intention to terminate the employee’s employment while allowing them the opportunity to respond. For example, they may provide medical information from their treating practitioner or a prognosis for their return to work. This helps ensure you deliver a fair and legally compliant process.

Whichever way you look at it, unplanned long absences from work can significantly impact a business. Taking preventative measures to support you in times such as these is worth considering. Risk mitigation strategies such as having back up people for all key roles so others can step in where required, capturing key knowledge about particular processes or business critical information into documents that can be easily accessed in case of absence, is good practice. It supports you in creating an environment where people are engaged and appreciated and want to help when times are tough and are all key risk mitigation strategies you can employ today.

If you are facing issues with employee absenteeism, don’t hesitate to reach out to us.

The HRSS team are always here to support and guide you.