What can you do if someone takes sick leave when they’re due for a disciplinary hearing?

The scenario is very common. Here's what employers need to know

What can you do if someone takes sick leave when they’re due for a disciplinary hearing?
Sina Mostafavi, Senior Associate at Australian Business Lawyers & Advisors (ABLA), explains the importance of requesting medical evidence to support the reason for the absence.

The scenario is very common: an employee is presented with a letter of allegations, or a show cause letter, inviting them to attend a disciplinary hearing, and they “go off sick”, claiming stress or otherwise. What can you do as the employer?

The most important general principle to note is that an employee being on sick leave (in the form of personal leave) does not in and of itself necessarily preclude an employer from continuing with a disciplinary process.

The appropriate steps to follow are:

1. Request medical evidence to support the reason for the absence, if it has not already been provided

What kind of medical evidence has the employee provided to support their absence from work?

Whether or not you have a policy that requires an employee to provide a medical certificate, it is open to you as the employer to require the employee to provide evidence that would satisfy a reasonable person that the personal leave is being taken due to a personal illness or personal injury affecting the employee.

If an employee fails to comply with a direction to this effect, that can in and of itself constitute a separate disciplinary matter.

2. Review the medical evidence

The most common scenario here is that the employer will be presented with a medical certificate which simply states that the employee is “unfit for work”.

While arguably a certificate of this kind will (while it is in effect) preclude an employee from attending a disciplinary hearing in the form of a meeting, it does not necessarily follow that the employee in question cannot, in the alternative, provide written answers to questions put to them that would have been dealt with in that disciplinary hearing, given that doing so does not constitute “work” as such.

3. Invite the employee to provide a written response

If you are satisfied that the employee cannot personally attend a scheduled disciplinary hearing, then you should write to them:

·    providing them with all relevant details of the matters that they would have been required to respond to in the context of that hearing; and
·    inviting them to provide a written response by a particular “cut-off” date.

The letter should provide the employee with a reasonable period to respond.

The letter should also make clear to the employee that any response they provide up to and including the cut-off date will be considered before any final decision is made in relation to the matters set out in the letter, and that in the absence of any such input the business will make a decision without the benefit of their input.

By including a “guillotine” provision of this kind, it will help assist avoid a scenario where a disciplinary/investigation process is continually derailed by a person’s “rolling” medical absences from work, particularly where such conduct may in part be motivated by a desire to run out any accrued personal leave before a likely dismissal.

4. Make a decision based on any response provided, and proceed with caution (but not too much)

Once the cut-off date has come and gone, you can make a decision as to next steps, taking into consideration any response provided by the employee to date.

If the employee has (as is common) claimed that their medical absence has precluded them from providing any written response, then you should take this into consideration before taking any further step, including whether the medical evidence reasonably supports this position, and whether any extensions of time may be warranted.

Sina Mostafavi is a Senior Associate at Australian Business Lawyers & Advisors (ABLA). Serving business and only business, this legal and advisory firm trusted by the Australian Chamber of Commerce and Industry and is the leading voice for industry in the Fair Work Commission. Contact Sina on 1300 565 846 or sina.mostafavi@ablawyers.com.au if you have any questions raised in this article.

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