Then they are entitled to be away on leave without pay for a further three months in any 12, according to Ross Jackson, Partner at Maddocks.
“It’s incredibly important to manage that properly and don’t inadvertently pay people when they have actually exhausted their entitlement to paid personal sick leave,” he told HC.
“Employers need to keep a careful record of the absence and to manage it.
“It doesn’t mean that you are in the face of the person who is away and harassing them.”
However, Jackson said it does mean you are entitled to inquire as to their state of well-being and health.
“If the absence becomes prolonged and it’s looking like the person might be taking it all in one block or they are leaving and coming back (which adds up to more than three months in any 12) you are entitled to obtain a medical opinion – not just a medical certificate, but a medical opinion,” he said.
The first port of call would normally be to ask the individual to provide their consent to obtain a report from their health practitioner as to diagnosis and prognosis, how long it is this likely to last and when/if it is going to get better.
Jackson said it’s then important to inquire if there are any steps that could be taken as an employer that would enable this person to perform the inherent (or what’s called in the Equal Opportunity Legislation ‘genuine and reasonable’) requirements of the employment.
That’s to be distinguished from: Is it possible for us to give them another job that they could do?
The law basically focuses on what adjustments you can make to that job.
Jackson raised the famous Qantas and Cosma case, involving the luggage ground attendant who couldn’t lift anymore.
“Qantas was successful by showing there were no adjustments it could make to that job that could avoid the lifting component,” said Jackson.
“It’s not obliged to create another job that the person could do.”
Jackson explained that a good employer with a good employee might be able to offer them another job if they have got one that they could do.
However, the law focuses on the adjustments that could be made to the job the person was contracted to perform that might enable them to perform it.
For example, if you have someone with a mental illness that requires certain amounts of treatment it may be that you can come to an adjustment that enables them to continue that job on a part-time basis for a period of time.
But how do you know what to do?
“Act in accordance with the medical evidence and get the medical report from the treater,” said Jackson.
“If that report is not comprehensive or the consent isn’t forthcoming or it’s inadequate in some way, then if it’s reasonable to do so, the employer has a right to provide a lawful and reasonable direction to an employee to attend an independent medical examination for the purpose of the employer ascertaining what that employee can safely do.”
This is part two of our interview with Ross Jackson. Part one can be read by clicking here
Mental health and the disciplinary process
Managing underperformance where a bullying complaint has been lodged
Ross Jackson will be speaking at the Employment Law for HR Managers masterclass 2016.
2 November I Dockside Darling Harbour Sydney
10 November I Four Points by Sheraton Perth
22 November I Stamford Plaza Melbourne
24 November I Brisbane Marriott Hotel
Consider an employee who is beyond their accrued personal sick leave. (If they haven’t worked at a company for a very long time, it might get to that point very quickly).