News Article

latest news in employment law

Combatting Abuse of Sick Leave

Published 17 Aug 2020

Read in conjunction with the July 2020 newsletter, Validity of Medical Certificates.

An employee’s right to time off from work must be practical in conjunction with the employer’s operational requirements. In the case of planned absence this is manageable, however with unplanned absence the level of control is limited. Unplanned absence cannot be controlled and therefore needs to be closely monitored.

Unplanned leave such as sick leave, bereavement leave and domestic violence leave is there to protect employees in unforeseen and difficult circumstances. Employers have a duty to be supportive, sympathetic and understanding towards employees in these difficult times. However, the good faith duty on both parties in the employment relationship does not diminish valid scrutiny from either side on occasions. It is for this reason the legislators allow the request for information or proof when applying for such unplanned leave.

Its recommended that requesting such proof is general practice in your company. Consistent application of such a practice will assist the employer in identifying abuse of leave and addressing it in a timely manner.

An important question, when an employee is not at work what happens to their duties? The assumption being that their duties will be completed by the person either before or after the period of absence.  But this, in some cases, remains only an assumption and reality is that the duties fall behind or get absorbed by other staff.

Employers monitoring absence in their workplace and managing the effect on their operations can consider the following;

  • the amount and/or frequency of the leave being requested by an employee;
  • the availability of leave for that employee;
  • the nature and/or reasons for leave (including the proof submitted for the same);
  • a pattern, if any;
  • the performance of the employee;
  • the stress on the employer's operations;
  • and the stress on fellow employees.  
An employee’s ongoing/repetitive absence from work may justify dismissal. However, this will require proper process and may fall under one or more of the following:
  • Misconduct; If there is a clear intention from the employee to abuse their rights.
  • Performance management; If the employee’s ability to perform up to standard is influenced due to the continued absence, but not for a medical reason.
  • Incapacity; If the employee’s ability to perform their duties are detrimentally affected due to the continued absence for to medical reasons.

Process, meeting and letter templates are all in the Discipline & Dismissal section of the Employers Toolbox, be sure to follow each and every step. One procedural omission can lead to thousands of dollars in compensation in today's business climate.