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Friday Workplace Briefing

The Use of Personal Leave is Surging

With the use of personal leave surging, employers are left asking what can you do?

Andrew Douglas and Nina Hoang discuss key challenges facing employers across managing personal leave, temporary absence provisions in termination and psychological health.

To view the full episode and catch up with the week’s latest news and developments please visit this link.

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About the Hosts

Managing Principal - Victoria

Senior Associate - Workplace Relations

Episode Transcript

Andrew Douglas: Okay, let’s jump onto our next big topic. Okay. Personal leave is blowing out at the moment.

Nina Hoang: Yeah.

Andrew Douglas: And there’s lots of sort of cynical rubbish about people not wanting to come to work and a whole lot of stuff. What’s actually happened is we are in a highly disrupted workplace at the moment. There’s a high level of uncertainty. People are much more vulnerable and damaged a result of coming out of COVID. And we are seeing a growth in psychological hazard claims in Victoria. 15% of all claims made and accepted to psychological claims at the moment. And they have four times the length of period from which they recover to a normal claim. That’s massive premium impact and massive dislocation to your work. It’s averaging about 9% across Australia. My point about it is this is something that’s running at you and it’s happening every day and we are hearing about it every day as well.

Nina Hoang: Yeah.

Andrew Douglas: How do I actually manage people so they do come to work ’cause work is a place of health. When we look at what are the causative factors between a psychological claim that takes someone out of work, about 70% of what causes the claim doesn’t start at work. Work is usually a healing place that people come to ’cause they’ve got problems with their teenage kids, whatever. And they go, “Oh my God, thank God I’m at work.” Okay. But when work is a substantial contributor to when it tips it over the edge.

Nina Hoang: Yeah.

Andrew Douglas: So when we talk about people taking leave, leave is a classic indicator of a psychological hazard. Okay. Classic, so it’s a time to reflect, but it’s very important that the relationship between supervisor and that employee is held tight during this period of time. ‘Cause what happens is people put in say they’re absent to the receptionist or their their partner can tell… anybody can do it.

Nina Hoang: Yeah.

Andrew Douglas: But you got to change the rules a bit and say, look notification requires evidence under the National Employment Standard and requires notification of your direct supervisor or the supervisor the night before so that we can arrange coverage so that we can ensure you’re well and maintain our obligations under the safety legislation of doing everything that is reasonably practical to monitor your health.

Nina Hoang: Yep.

Andrew Douglas: Which means I will then follow up later in the afternoon. Now these are just some basic tools that have enormous success in reducing absenteeism but also reminding people that they’re cared about.

Nina Hoang: Yeah. I think that’s a big one. That it’s very common to see a pattern but not looking at, you know or why is it so easy that for people to take the leave because they don’t think you care.

Andrew Douglas: Yeah. And the longer people stay away, the more they take.

Nina Hoang: Yeah.

Andrew Douglas: And we have, it’s very common for us to get cases where people have well extended their paid personal leave. And often the discussions are, “Look, do you mind if they…” “Is it okay if they can take annual leave?” or “Can they take long service leave?” They’re all highly destructive processes which ensure the person’s not coming back to work.

Nina Hoang: Yeah.

Andrew Douglas: The thing to do is to find out what are the levers that are driving this person away from work? And I come back to this issue of the most important thing is the relationship between the supervisor and their employee. Now we’re not going to dwell on it long. I just wanted to say if you do that, the problems you are currently encountering with absentees will dramatically reduce those three simple things I talked about. But let’s jump into one of the major topics we want to talk to you about, which is temporary absence. And I’m going to run through cases at a very high speed for you. Under, under the Fair Work Act you’re not allowed to sack someone in any 12 month period unless they have been away for a period of greater than three months and exhausted their personal leave. Okay? That’s the rule.

Nina Hoang: Well if you can’t terminate if they’re temporary absent from work because of a prescribed illness or injury.

Andrew Douglas: I was going to get to that. So there’s a series of cases that talk about that and I’m not going to go through a whole lot of them, but I want you to go probably to the end of the cases that we were going to talk about, which is Anderson and Crown, which is the guy that wanted to see Kevin Sheedy’s last game in Western Australia. He’s a mad Essendon supporter.

Nina Hoang: Yeah.

Andrew Douglas: And they said, “No, look you can’t take personal leave.” And he went and got a certificate from a doctor that said you can and Crown saw him actually swing his jacket at the ground and they terminated his employment and the court said, “Look I know you’ve got a medical certificate, but you you’ve already given notice. You’re going to go and you’ve used it as a methodology of avoiding work on a day that you were rostered to work.” And they upheld the termination. Now you see he was terminated. It was within a temporary absence period but what he did was misconduct. And that is the heart of it because most of the issues that we deal with, people who are absent for a period of time become misconduct issues like failing to provide the appropriate evidence.

Nina Hoang: Yeah.

Andrew Douglas: Of not attending work and being given a direction to do it and not doing it. Now there’s a good example.

Nina Hoang: Yeah. And in fact, under the regulations, if you request the evidence and they don’t provide it for you, it’s not counted as a prescribed illness or injury. So the whole temporary absence doesn’t even apply.

Andrew Douglas: And that’s the beautiful point of this discussion. So can you just be vigilant about the rules that sit around absence and give people appropriate directions in policies and procedures. Remind people that when they are absent, you’re entitled to ask for evidence of it. And when people take time off, say to them after the first two single days, for instance which is a common thing, you are required to produce evidence in accordance to the national employment stance. And that can be a statute declaration and medical certificate or like.

Nina Hoang: Definitely ask. It’s like the minimum you should do because if they don’t provide it to you, that’s an easy way to get around because–

Andrew Douglas: Contemporary absence because this is part of adverse action. Okay. It’s a reverse onus. You’re in trouble for when you do it. There’s damages. It’s nasty. There’s penalties. It’s not good thing to do. Now there’s another beautiful piece of case law which is some Silbert and Fair Work Ombudsman and Siner which talk about when somebody clearly has an illness but they’re back at work so they’re not absent and therefore can you terminate during those types? Now Nina and I have run this argument.

Nina Hoang: Yeah.

Andrew Douglas: Everyone’s backed away from it. But our view is that it is a solid argument to say, given the exact the very nature of the wording that exists. If a person is present, they are not away.

Nina Hoang: Yeah.

Andrew Douglas: And therefore you can terminate.

Nina Hoang: Yeah. ‘Cause the wording of the legislation is temporarily absent at the time, which means that if they’re back at work, technically it doesn’t pass the elements-

Andrew Douglas: But you then still have to prove the inherent requirement capacity that they’re not fit with the inherent requirements means you need medical evidence.

Nina Hoang: Yeah.

Andrew Douglas: That they’re not fit now, not fit in the foreseeable future and there are no reasonable adjustments that can be made.

Nina Hoang: Yeah.

Andrew Douglas: So it’s not a get out of jail free card.

Nina Hoang: No.

Andrew Douglas: But it is a really interesting argument and it means that for someone who has extensive sick leave like seven or eight months, there is a quicker pathway through if you’re willing to take a little bit of risk.

Nina Hoang: Yeah. And, and I also feel like there’s a misunderstanding that because someone is on sick leave then you can’t touch them. But the temporary absence cases say very clearly that even if they are away and they’re ill, if you’ve got another valid reason, like Andrew said, you are well in your rights to terminate anything.

Andrew Douglas: And that that’s… So, yes. Any form of two things. One is if you’ve commenced a disciplinary process before someone takes personal leave. When you’re advised there’s only a short period of leave it’s going to be taken, you’re not allowed to continue it. But where it becomes indefinite, you are allowed to continue the pre illness or injury disciplinary process. Yeah. Through things like letters and–

Nina Hoang: Yeah. Like accommodating the fact that they’re on single…

Andrew Douglas: Yes. And giving extra time and making adjustments. But secondly, if people commit misconduct while they’re on leave, whether it is at work or out of work, yeah. Then the temporary absence provisions are not a restriction to your proceeding to discipline a person.

Nina Hoang: Yeah. That being said, we would still say, “Look, try to wait for them to come back,” because they’re going to bring the argument and it means you have to fight it in court. If you can avoid and your argument protections–

Andrew Douglas: It’s your argument case then it’s, but remember if it’s looks like it’s going to be indifferent by the bullet. That’s the other thing I’d say. So look, let’s now jump onto the case study, which sort of agitates this in a variety of other things and was written on a plane. Off you go…

Nina Hoang: Kylie headed ICT for People People Pty Ltd.

Andrew Douglas: I like that.

Nina Hoang: A labour hire business for white collar industries “PP.” Kylie had a young team leader who reported her called Giles.

Andrew Douglas: Giles.

Nina Hoang: Okay. Part of the systems development with Host employees involved online payroll.

Giles headed up the project but hated coming to work. He liked to work from home after COVID and resisted returning to work. His contract stated his place of work was the office and as head of the team doing creative work it was necessary for the team to work together. Initially Giles voted with his feet and just didn’t come back.

In October, 2022, he attended a performance meeting where he was given direction to attend work three days a week as rostered by Kylie. He was told a failure to do so without evidence of personal leave would lead to a warning.

He had over 40 days of accrued personal leave and started taking leave without a certificate every Friday. No effort was made to push for evidence. He also failed to attend work on other days and said he woke up late, his car was not working and a myriad of other excuses, which meant he only attended work seven days of the next 40 work days.

Andrew Douglas: That’s work days. I was working in the kitchen.

Nina Hoang: Kylie arranged another performance meeting. Charles attended and said he felt unfairly treated. His workload was high and couldn’t be done by attending work given the 2.5 hours of trouble required each day to go to and from work. And that he was feeling stressed. Kylie said all further personal leave absences must be supported by appropriate evidence and he must attend the work. Problems with cars and waking were his issues and he had to fix them. She said any further absences would lead to discipline unless there was a lawful excuse.

The next day he presented a medical certificate saying he felt stressed, anxious and was unable to work. It was for seven days. But said he will, he said he will be reviewing it and the problems of illness are ongoing beyond seven days.

Andrew Douglas: And that’s what the doctor said I should say.

Nina Hoang: I’m sorry.

Andrew Douglas: Yeah, that’s my fault

Nina Hoang: On Facebook, on the last day of sick leave Gil announced he would never go back, said the HR manager was a dog and he would get her (a clear threat) and he knew where Kylie lived, pointing a figure at the camera mimicking a gun.

Oh, it was a video.

He attended work on day eight, said he was still unwell and would go to his doctor after coming in to collect his things and take more time off. PP held a disciplinary meeting and showed Giles his Facebook posts. He didn’t deny them but said they were on a high privacy setting and Kylie had no right to look at them or use them. The posts were done late at night outside of working hours and he was off sick. The HR manager said the post was given to Kylie by a friend on Facebook. PP terminated his employment.

Andrew Douglas: Alright, so we go to the questions, was PP able to use the Facebook post, which is a Victorian–

Nina Hoang: It’s a really interesting case.

Andrew Douglas: Yeah. Court of Appeal case says, look, if you were to… you are not allowed to use it unless the reason for you using it behind the privacy settings is if you were to advise the person that they may remove it. That’s the effective.

Nina Hoang: Yeah.

Andrew Douglas: And that’s in this example–

Nina Hoang: And it was necessary in order to perform the investigation into the misconduct.

Andrew Douglas: Yes.

Nina Hoang: But at the first instance they say, yeah it’s technically protected by privacy. So as an employer, you need to be aware of that. It’s not like free range–

Andrew Douglas: So at that stage you actually trade emails between yourself saying, look, if we do raise this what’s the likelihood of, you know, you set all that stuff up.

Nina Hoang: Yeah.

Andrew Douglas: Just remember internally you’ve got to create your evidence. Was the out of work behaviour a proper basis for termination? This is Rosen and Telstra…

Nina Hoang: Yeah

Andrew Douglas: …and it’s Hunt and Coomealla on a whole series of cases, which sets up three base termination. But can I just say out of work behaviour that threatens the welfare of somebody in work is inconsistent the nature of continuing employment.

Nina Hoang: Yes.

Andrew Douglas: And it is serious misconduct. So the answer is yes.

Nina Hoang: Yes.

Andrew Douglas: So let’s get to the tough one. Given the medical certificate, ongoing illness being known although he did attend work, could Giles say the termination breached temporary absence provisions especially if the basis was he confirmed he was never going to be fit to return to work, not the out of work misconduct.

Nina Hoang: So to decipher the question, if they said you are being fired because you’re never going to be able to return to work.

Andrew Douglas: Yeah.

Nina Hoang: Not the misconduct. Yeah. So–

Andrew Douglas: Let’s start with the misconduct for fun. If they did for the misconduct it’s fine.

Nina Hoang: Yeah. Because it’s clearly not for the absence.

Andrew Douglas: Yes.

Nina Hoang: But if it’s not, the fact that he’s at work would be using the novel argument.

Andrew Douglas: Why would be?

Nina Hoang: Yeah, that fact that he’s not temporary absent at the time of dismissal.

Andrew Douglas: And let’s make it even harder. Let’s say that he has just called in, he’s not at work but he’s not covered by any medical evidence and doesn’t provide medical evidence for absence that day. He still wouldn’t be covered by the temporary absence.

Nina Hoang: Yes. But there are cases that say that it’s supposed to be provided within 24 hours but the court has the discretion to extend it.

Andrew Douglas: That’s Cork and Cox.

Nina Hoang: Yeah. And so if he never provides it then you’re in the clear.

Andrew Douglas: But like Cork and Cox was four weeks late for instance.

Nina Hoang: Yes.

Andrew Douglas: And they said look, that’s okay.

Nina Hoang: Right after termination as well.

Andrew Douglas: Yeah.

Nina Hoang: So I think look, potentially it could be fired under that but it’s still tenuous ’cause what’s the stopping from turning around tomorrow and being like, here’s my medical certificate.

Andrew Douglas: And can I just say you can’t do it. And here’s the one reason ’cause the evidence is absolutely clear from a series of cases around about 10 to 12 years old that if you’re proceeding on the base of the inherent requirements, you’ve got to have objective evidence of a health professional that provides the basis of saying the person is not fit for work.

Nina Hoang: Yeah.

Andrew Douglas: Now will not be fit in the future in which there are no reasonable adjustments. So the fact that someone says in a fit of anger “I’m never coming back to work.”

Nina Hoang: Yeah.

Andrew Douglas: Is not evidence that you can properly rely on. It’s evidence that can start an inquiry.

Nina Hoang: Yes.

Andrew Douglas: But it’s not evidence that you can properly rely on to say a person is not fit for the inherent requirements. So if you did it on that basis, you’d fail at every way. You’d failed the common law test. You’d fail the temporary absence test.

Nina Hoang: Yeah.

Andrew Douglas: So this is our discussion that we’ve had about it. There are ways through this. You can be cunning like Nina and I are, there’s an argument you could run.

It’s tricky

Andrew Douglas: But it’s a dumb argument to run ’cause you’ve got to reverse onus.

Nina Hoang: Yes.

Andrew Douglas: And you’re in court when you’re running the argument. It’s exchange of pleadings that you’re running that argument.

Nina Hoang: Yeah. I think also he wasn’t away for very long. It was a week–

Andrew Douglas: Seven days, yeah.

Nina Hoang: So you… there’s no reasonable basis you can make that determination. He could never come back.

Andrew Douglas: No. No, there’s not. And I, for me, the important thing that comes out of this is we often deal with difficult people. Okay. We’re inclined to rush towards dealing with difficult people.

Nina Hoang: Yeah.

Andrew Douglas: And we’ve given you a couple of cases today where they dealt with a difficult person. They stood back and went, “No, we’re going to take the time and we’re going to do it well.” So I, I think my father had a saying which is “You’re best of those you hate. Stay close and be good.” Don’t try and be reckless in getting in somebody out of an organisation and just slow down. Just slow down and go, “Alright, the person that’s done this. The person that’s gone to Facebook, the real issue is their misconduct.”

Nina Hoang: Yeah.

Andrew Douglas: A threat to another person given O’Keefe’s case in a series of old cases is a threat that lives within the workplace and is utterly inconsistent with someone’s continuation of their work.

Nina Hoang: Yeah.

Andrew Douglas: And on those circumstance, it’s the primary test in Rose and Telstra. It is serious misconduct because it creates an imminent and immediate risk to the health and wellbeing of somebody.

Nina Hoang: Yep.

Andrew Douglas: Regulation 107, you’re there.

Nina Hoang: Yeah.

Andrew Douglas: Don’t get caught up with the other noise where you think I could sneak this in, get you never fit. You’ve got the right argument. Go for the right–

Nina Hoang: Use the easy path.

Andrew Douglas: Yeah. But the problem is lots of people don’t.

Nina Hoang: No. Because they get fixated on how annoyed they are and they want to do something to hurt the other person. But it just burns you in the end. So it’s not worth it.

Andrew Douglas: Can I just say next week we’re going to deal with recklessness by director.

Nina Hoang: Okay.

Andrew Douglas: There is a case that came out yesterday, hot off the presses, where a director actually tried to resist a fine around reckless endangerment and a term of imprisonment and where they found his behaviour. And I want to go through it. I’m not going to spoil it for next week, but they go through his behaviour and I think it’s a real eye-opener for officers. Can I just say that it is a real eye-opener for officers what his recklessness under the safety legislation. That’s our topic next week.

Nina Hoang: I feel like there’s a lot of spotlight on officers recently.

Andrew Douglas: Well, there is.

Nina Hoang: More of a focus by the regulators.

Andrew Douglas: Yeah. We’ll look at the plant case that we saw just recently where a guy, Fair Work Ombudsman had a go and he said all these terrible things and end up with actually relatively minor penalties.

Nina Hoang: No more spoilers Andrew, save it for next week.

Nina Hoang: Okay.

Andrew Douglas: Yeah. Anyway next week.

Nina Hoang: Tune in next week.

Andrew Douglas: We want to see some thumbs up. Okay. Some thumbs up.

Nina Hoang: Alright. See you later.

Andrew Douglas: Bye-Bye.

Nina Hoang: Bye.

Check this next

This week, Andrew Douglas and Nina Hoang discuss what happens when officers of organisations rush to meet their operational goals, making them careless about well-known practices including their own policies. To view the full episode and catch up with the week’s latest news and developments please visit this link.