Mathew Reiman: All right, so we are going onto our main topic for today. One, I’m thinking all of our clients and viewers will be very familiar with absenteeism. And Kim, absenteeism not a problem that’s just popped up out of nowhere. Always been a problem.

Kim McLagan: It’s always been a problem. But we’ve seen a definite change in how it’s manifested as a result of the pandemic

Mathew Reiman: That’s right, that’s right. And look, what we’ve sort of seen I think is really three phases over the last two years of what the use of personal leave and absenteeism has looked like. We had the sort of first phase really sort of the lockdown phase. Everyone, for most of the industries, a lot of people working from home, a marked decline.

Kim McLagan: Yeah.

Mathew Reiman: In the use of personal leave. You know, people obviously weren’t out and about getting ill, but there was also a greater proportion of people just continuing to work while ill because they had the accessibility of doing it through at home. So all of a sudden we had a huge number of employees building up very very large personal leave balances.

Kim McLagan: And employees were loving it.

Mathew Reiman: They were loving it. They thought this is fantastic, you know, until then we hit the second phase. You know, we come out of the lockdowns really at the sort of end of 2021 and particularly during the winter period this year.

Kim McLagan: So many people became ill.

Mathew Reiman: That’s right, that’s right. Lowered immunity, greater access to personal leave, more illness and particularly COVID-related illness during a period where we had the mandatory isolation periods. Huge increase in the taking of personal leave. You know, people legitimately really, really unwell, but also starting to be burnt out.

Kim McLagan: Yes. Absolutely. Because no one able to take a holiday.

Mathew Reiman: That’s right, that’s right.

Kim McLagan: It had a huge impact, didn’t it?

Mathew Reiman: It did. It absolutely did. And so that tied itself into, of course, that greater level of absenteeism, that use of personal leave. But now what we’re seeing into this sort of third phase, which I think is a really interesting shift in where this is gone is we’ve come out of the side of this level of great illness from this sort of winter period this year. And we’ve seen a push for people just to go back to normality. A removal of some of the things that people perhaps are starting to take for granted about flexibility and things of that nature. And anecdotally what we’re hearing from a lot of clients is we’re getting a lot of employees increasing in their levels of absenteeism because they’re using personal leave to achieve the flexibility that’s that they feel has been taken away from them because of the shift back to “normality.”

Kim McLagan: Yeah. So employees need to take a really strong stand about that and I think the best way, and what we are seeing with a lot of our clients is they’re putting a flexible workplace policy in place. And so there is a lot more flexibility than what there was certainly.

Mathew Reiman: Absolutely, yeah, absolutely.

Kim McLagan: But, you know, when people employers say you’ve got to be three days in the office two days at home, I really think that should be in a policy.

Mathew Reiman: Yes.

Kim McLagan: Because people are still taking advantage of it.

Mathew Reiman: Absolutely.

Kim McLagan: Even though they’ve got the flexibility-

Mathew Reiman: Absolutely.

Kim McLagan: -much more than they did before.

Mathew Reiman: Yes.

Kim McLagan: They’re definitely doing the wrong thing.

Mathew Reiman: Oh agreed, Kim. Agreed. And look, and we’ll come back to this point in a moment but the key thing about the having the policies in place is that there’s a clear set of rules that people know and have to abide by.

Kim McLagan: Exactly.

Mathew Reiman: And if you’re achieving some of that flexibility that people are looking for, you’re probably on the right track. But look, the real big question is, okay well let’s assume for a moment where we’re talking about businesses that can’t achieve that flexibility through a policy. Well, how do we manage this issue about absenteeism through the use of personal leave? Now you’re always going to have people who of course are legitimately ill, but how do you reduce the use of personal leave sort of for more nefarious purposes? And I think the really main key aspect of this there’s sort of three elements of it. One we’ll speak bit out a little bit more process, you know cannot emphasise this strongly enough, is that where absenteeism through the use of personal leave thrives is in an environment where there is not a clearly articulated set of rules about how personal leave is to be taken. You know, and we’re not here simply talking about a policy that just says you have personal leave you can take it when you’re sick. Really we’re talking about some more direct and interventionist steps in this process. You know, fundamentally at the heart of it remembering that an employer under the Fair Work Act has the right to ask for evidence of an illness and is entitled to notice as much as reasonably practical from an employee when they are ill or injured and won’t be able to attend work.

Kim McLagan: So an employer needs to put some real steps in place.

Mathew Reiman: Absolutely.

Kim McLagan: Some real practical steps in place so people know exactly what they’re required to do. So don’t email reception and say “I’m not coming in today” or send a text message. The policy should specify you must call your manager if you can before your shift starts. You must provide evidence of the reason for your illness being a medical certificate or a stat desk.

Mathew Reiman: Yep. Yep. And I mean, I think the, you know the direct calling one, you know mean I got a great example was assisting a client who is dealing with this problem. They had different elements of their business which were doing different things, and they all said, “Look absenteeism is a problem for us, except for one person.” They put their hand up and said, “Oh actually I’m doing something a little bit different in my part of the business and I’ve had an 80% reduction in absenteeism.” And it was simply that step of saying under the policy, if you’re sick, you’ve got to call.

Kim McLagan: Yeah.

Mathew Reiman: You know-

Kim McLagan: And makes them more accountable, doesn’t it?

Mathew Reiman: Well, it does, it does.

Kim McLagan: And they’ll second guess themselves.

Mathew Reiman: Well that’s right.

Kim McLagan: Will I really get away with this today.

Mathew Reiman: Well, that’s the thing. That’s the thing. And you know, and people who are ill, then you can get better information about it and put supports in place that they might not realise that they need. So there is a positive net effect for people who are legitimately ill. But people who are, you know, look, most people aren’t going to do the wrong thing. This we know. There are a small cohort who will, and they’re always going to be difficult, but it’s the people in the middle who if they see a lack of process and they, you know they feel aggrieved by watching the people who they perceive to be the bad people getting away with something they’re more inclined to fall into those bad habits themselves.

Kim McLagan: So the policy needs to set out a really clear procedure about what will happen if you are in breach of that obligation. And be consistent across the board. You can’t have one rule for some and not for others.

Mathew Reiman: This is the key point, Kim. Discipline, you got to be disciplined about a policy. It’s not good enough to have a rolled gold procedure for step one all the way through to step 10. If it’s not being applied. One, if it’s not being applied properly at all. Two, if it’s not being applied consistently, you know it’s got to be disciplined across the business about this is applied every single time, you know and if you bring something like this in as a new thing you can have a bit of a grace period of sort of, you know 30 days or whatever. But once you get a certain point it’s everyone knows this is what’s going to happen. And then leadership around that. Leadership around everything within your business.

Kim McLagan: Lead by example.

Mathew Reiman: That’s right. Like it applies to everyone, including to management. We’ve got to take the steps we’ve got to apply it equally across the board.

Mathew Reiman: All right. So yeah, look, oh and I think when we’re looking at those sort of aspects though we’re still going to get to this point really where there are going to be circumstances where people still aren’t complying, they’re still absent. So look, what do you do there? Really looking at this in two ways. The first is we know there’s the, the prohibition against terminating an employee who’s temporarily ill or absent. One of the things you really want to emphasise it’s really commonly misunderstood – this provision. I think often people think it’s quite broad and that as soon as someone is away and they said that they’re ill, that means that this provision’s enlightened. Key thing is really it’s not, okay? I mean you still can’t terminate someone’s employment because they are ill or injured cause that’s disability discrimination and breach of the general protections. But what we really want to emphasise is the only types of absences that are protected are those where the person has provided the evidence and followed the notice provisions. Of whatever instrument applies of their employment. So don’t be afraid to terminate an employee for another reason just because they’re absent on a particular day. But just still make sure you’re not terminating their employment for that particular reason.

Kim McLagan: Yeah. It’s got to be a misconduct issue.

Mathew Reiman: That’s right.

Kim McLagan: And it can be the absenteeism.

Mathew Reiman: Yes.

Kim McLagan: Can be the misconduct.

Mathew Reiman: That is, that is exactly right, Kim.

Kim McLagan: But always good to get some advice.

Mathew Reiman: Exactly. Yeah. Always get some advice on it. And Kim, from a worker’s comp perspective as well they can get a point in time where termination might need to be necessary. But that’s a little bit more complicated.

Kim McLagan: This is more complicated. Well, and it applies not, not only to worker’s comp but people with personal injury. But it all comes down to the inherent requirements of the role. But the first thing to know – we’re running out of time.

Mathew Reiman: Oh yeah. If we can zoom, we have to zoom through this big thing, I’m sorry we got too about the parental leave.

Kim McLagan: We did. A lot of clients come to me at the end of the obligation period to provide suitable duties and say Do you have a template letter I can send to my employee ’cause I don’t have to provide them with suitable duties anymore and I want to terminate them. It’s not that simple.

Mathew Reiman: No. It’s not. Not that simple. No.

Kim McLagan: Because it does create the disability, the discrimination under for disability and general protections reason. But you can lawfully discriminate stuff against someone if you get medical evidence that says they’re not fit for the inherent requirements of the role. Now or for the foreseeable future and no reasonable adjustments that we can make that will enable them to do the role. It comes to timing and if you are in this situation please do reach out because there are real advantages and disadvantages around the timing of when you terminate in terms of premium. If you’ve got someone who’s off work for the first 12 months and there’s no indication they’re ever going to get back, I would say terminate now. Because they’re going to continue to accrue annual leave. And so that’s an expensive business.

Mathew Reiman: It is. Yeah.

Kim McLagan: But if they’re not going to get back there’s no point keeping them on as an employee. Cause they still, there’s still employee obligations.

Mathew Reiman: That’s very true, Kim.

Kim McLagan: If they are at work or if they-

Mathew Reiman: Oh no. Keep going.

Kim McLagan: If they’re at work, there’s real premium advantages so consequences if you can keep them employed. But there’s also disadvantages in that you’ve still got to provide super duties. They’re still going to accrue annual leave. So it’s a balancing act in terms of the financial consequences, still monitoring their health that sort of thing. So lots and lots to think about.

Mathew Reiman: Lots to think about, Kim. Yeah. So I think the major takeaways, process, discipline leadership, if you’re doing that around your absenteeism risks and your policy around personal leave, you going to mitigate things as much as possible.

Kim McLagan: Really important point though, do not rely, especially in Victoria, on information you get from the IMEs to terminate, you must get independent medical evidence.

Mathew Reiman: That’s right. Don’t want to be breaching the act.

Kim McLagan: You could be in front of a magistrate.

Mathew Reiman: Don’t be doing that.