Dismissing absent employees
May 14, 2018 | By Charlene Woodbine, Vitil
It is often challenging for a Perth small business faced with an employee who has been absent from the workplace for an extended period of time, sometimes without any explanation.
Whilst it may be tempting to dismiss their employment and find a replacement, it pays to delve deeper into the facts before dismissing too quickly. Dismissing an employee without following proper process can result in an unfair dismissal or other claim - a potentially risky and costly exercise for businesses.
If you are faced with this situation, Vitil's team of Perth based professionals, would advise that you should consider the following:
- Do you know why the employee is absent?
- When was the last time they attended work? What occurred at that time?
- Has the employee made any contact with you whilst they have been absent?
- Is the employee contactable?
- Do you have details of the employee's next of kin?
- What attempts have you made to contact the employee?
- If you have contacted the employee, have they responded?
Once you have all or some of the answers to the above questions, it is advisable to seek advice from a HR professional on the best approach.
If the employee is absent due to a non-work related illness/injury
Note that under the Fair Work Act (section 352), an employer cannot lawfully terminate an employee's employment for a temporary absence from the workplace, unless this period extends beyond 3 months.
The employer will also need to mitigate the risk of a potential adverse action claim. To minimise risk of such a claim, it is advisable to have an open conversation with the employee and to seek further information about the employee's treating physician about the employee's prognosis and capacity to return to work and fulfil the inherent requirements of the employee's role.
It is critical to get a clear picture of the nature of the employee's condition and whether it is medically possible for them to return to work. This may mean that the employee attends a fitness of work assessment to determine their capacity.
If the employee is absent due to reasons other than illness/injury
If the employee has some personal non work-related reason for not attending work, it is recommended that the employer meets with the employee to discuss the reasons. In some cases, the employer and employee may be able to agree on a temporary arrangement that doesn't result in ending the employment relationship.
If no agreement can be reached and the employee is unable to perform their role, it may be time to consider whether termination of employment is appropriate - however it is strongly recommended that you seek advice if this is required.
If the employee is absent from work and uncontactable
Before terminating employment, it is important to ensure that you exhaust all forms of communication that you might have with the employee, including:
- Calling the employee
- Calling next of kin (if required)
- Writing to the employee requesting that they make contact with you. This could be sent via courier mail to the residential address and it could also be sent by email
- If all else fails, you may wish to forward the letter to the next of kin's address/email
It is recommended that you keep records of your attempts to contact the employee. If, after exhausting all methods of contact with no success, it may be appropriate to consider whether the employee's employment has been abandoned.
In this situation, please contact the team at Vitil HR to get some advice before terminating employment.
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