1. By: Clare Dewan and Associates This presentation is subject to copyright and is not to be reproduced except by express permission

2.  Employees are often absent from work for a number of reasons, and each of these must be managed differently. Employees can be absent in circumstances which include the following:  - Excessive absences (paid and unpaid)  - Work cover  - “Stress Leave”  - Sick leave, including paid and unpaid, on a long term basis

3.  - Abandonment of employment  -Unauthorized Absence  -Leaving a shift without permission of the manager or nominated superior  - Late or no notification of a failure to attend shifts

4.  - Managing these situations requires different management tools, but each situation needs to dealt with if the absences are causing issues in running the facility, inclusive of incurring costs of employing agency staff

5.  -Employees are entitled to take sick leave where there is a genuine need to do so  -Where and employee is taking excessive time off without seeming to be ill, or in a predicable pattern, an employer is entitled to request details of the reason for the absences  - An employer is entitled to take the matter to a formal meeting if there are unexplained or excessive absences

6.  - The employer needs to write to the employee requiring their attendance at a meeting with the details of the absences provided - where an employee has taken so much sick leave so as to have no paid entitlements left, employers should avoid allowing them to take any other leave, such as annual leave, without understanding why so much leave has been taken.

7.  - The most important issue where a work cover claim has been made is the ground work done as soon as the claim is made  - It is essential that the manager on site is able to provide a clear report on the circumstances leading up to the claim particularly where an employer wants the insurer to deny the claim

8.  - The report needs to be done so as the events are in chronological order, and the report should be sent to the insurer with a covering letter to a nominated person at the insurer’s office  - It is essential that a person in authority and with knowledge of the claim attend any conciliations and that the claim is managed from the date the claim is received

9.  Employers who are trying to manage difficult situations should be aware that if an employee claims “Stress” leave after an attempt to counsel or informally deal with workplace issues, the next attempt needs to be formal - If an employee is on sick leave, it is generally advisable to avoid the commencement of disciplinary procedures

10.  - There are instances where an employer may refuse to accept a sick leave claim  - This would include where it seems clear that an employee has made the claim to avoid, for example, a disciplinary meeting that has been properly organised.  Where the employee has claimed sick leave leave after annual leave has been refused

11.  - An employee who is not dealt with appropriately while claiming sick leave may be able to make a claim of adverse action  For example, they may say that they are being acted against simply because they were pursing the right to take sick leave  - If an employee makes a claim of adverse action the onus is on the employer to prove otherwise

12.  - Employees can sometimes be on long term absences due to illness or injury, which may or may not be work related  - In the case of a non work related absence, the employer is able to take action to terminate the employees employment after the employee has been absent in excess of three months on unpaid leave

13.  - After a three month absence on unpaid leave, or an aggregate of 3 months in a twelve month period, the leave is no longer deemed to be “temporary” under the Fair work Act and therefore it would not be unlawful to terminate  - There is still a requirement that the termination not be harsh, unjust or unreasonable

14.  - An employer who wishes to ascertain the employee’s intentions to return to work after this three month absence must write to the employee advising them of the matter to be discussed and the meeting details and what the end result of the meeting may be  - In the case of an absence on work cover, employers have an obligation to keep the job open for a period of no less than 12 months

15.  - Employers need to check with the insurer as to the viability of terminating an employee’s employment at this stage  - If the employer wishes to move to terminate an employee’s employment when on work cover, a letter has to be written and the opportunity to attend a meeting to discuss the matter provided

16.  - Abandonment of employment should not be confused with a situation where an employee leaves their shift before finishing time without permission  - An employee can be considered to have abandoned their job in circumstances where they simply do not report to work for days and make no contact

17.  - Examples of this include employees not returning from annual leave as per roster, being on sick leave without medical certificates or without contacting the facility  - Employers need to write to the employee asking that they make contact by a set time and date, and that a failure to do so will be seen a an abandonment of employment. Do not say their employment will be terminated

18.  - If the employee has abandoned their employment that is what they are told in writing and this then becomes a technicality in any attempt to claim unfair dismissal

19.  - This is an absence where an employee takes leave for which they have not had authorization  - The most common example is where a staff member has been on annual leave but fails to return on the set date and fails to make any contact with the facility

20.  - Another example is where an employee has requested annual leave over the Christmas/ New Year period and when it is refused, takes it anyway  - The issue may end up being that they took unauthorised leave effectively abandoning their employment, but each situation is different

21.  - This occurs in varying circumstances which requires varying responses  - At times this action may be deemed as serious misconduct, others it is not  - Examples of where this behaviour occurs is where the employee does not like a co-worker, an employee has an argument with someone, they do like the section of the facility they are rostered to work in

22.  - Where an employee is constantly failing to allow enough time for an employer to find a replacement, or where they fail to advise they will not be attending work, disciplinary action is able to be taken

23.  - The vast majority of aged care providers in Victoria have enterprise agreements which contain disciplinary provisions  - Employers need to ensure these are reflected in policy and procedure  - employers need to have reference to what may be seen as serious misconduct in their contracts of Employment which must be signed prior to employment

24.  - Our clients’ agreements allow for three warnings on matters not seen as serious misconduct and summary dismissal where matters are deemed to be serious misconduct  The agreements also have provision for a final warning only to be issued in matters that are deemed to be serious misconduct

25.  - A final warning should be issued only where the employee has been suspended on pay and threatened with the termination of their employment  - Employers need to ensure that they afford procedural fairness to employees. Examples of what is NOT procedurally fair include the following:

26.  - calling an employee into an office, advising them there are serious concerns with their work practices and expecting them to respond instantly  - Not providing an employee with the evidence you intend to rely on in a matter (save for the whistle blowers in an resident abuse matter)

27.  - Not allowing a representative to act as such, rather referring to them as a support person who has no right to speak  - Not giving due consideration to responses given  - the process itself is not complicated, but it must be followed with the appropriate correspondence, appropriate wording with the person conducting the interview having the necessary skill base and ability

28.  When writing letters to attend disciplinary meetings you need to ensure:  - that you advise the employee of the allegations  - that the employee is advised to bring a representative  - that the employee is advised as to what

29.  the outcome of the meeting may be  - that the employee is advised what will happen if they fail to attend the meeting or to make suitable alternate arrangements  - that the employee is provided with copies of statements and/or relevant documentation upon which you will rely.