Can you terminate for repeated absenteeism?

Some employees hardly take any personal leave, and continue to accrue their personal leave days from year to year. On the other end of the spectrum, you have employees who appear to take vast amounts of sick leave, and often in excess of the statutory minimum of 10 days of paid personal leave per year.

Most employers have policies in place that stipulate the procedure to be followed by an employee when they’re taking a personal leave day. Often this procedure involves notifying a supervisor or manager before the start of the day or shift, of the fact that the employee will be absent from work, and requires the provision of a doctor’s certificate to substantiate the illness, in order for it to be paid leave.

In some situations, an employee is absent quite frequently, and may not comply strictly with the policies and procedures in place. If this happens, is an employer able to terminate the employee’s employment for repeated absenteeism?

As a starting point, it is typically unlawful to treat an employee adversely (for example, by terminating their employment) solely because they are suffering from an illness or because they have sustained an injury. However, employers are legitimately entitled to expect that an employee will be present at work to perform the role for which they have been hired. If an employee is absent frequently, the absence can put a strain on resources and increase the workload of other team members – so in those circumstances, what is the procedure to follow in order to address the issue?

The first step is to ensure that you are consistently enforcing your internal policies. That means, chasing up doctor’s certificates and if necessary, warning employees that a consistent breach of the absentee policy could result in disciplinary action, including termination of employment.

The next step is to put the concern to the employee, and importantly, provide them with an opportunity to respond. The importance of this step was recently illustrated in the case of King v D.C Lee & L.J Lyons where Ms King, an associate at law firm Lee & Lyons, was terminated for, amongst other things, frequent absences from work.

Ms King’s direct report and the HR Manager had both been previously informed of the fact that Ms King was a victim of domestic violence. The day before Ms King was dismissed, she was required to attend court for the domestic violence matter, and she notified the HR Manager of this, and that the court matter would likely finish at about 11:00am. That evening, Ms King was informed that it was unlikely that the court matter would be heard before 12:00pm. Ms King did not notify the HR Manager or her direct report that she wouldn’t be back in the office by 11:00am.

On the day of her dismissal, Ms King attended work at about 8:45am and left at 10:00am for court. She returned to the office at 2:15pm. On her return, she was summoned to the boardroom where the HR Manager, and the partners, Mr Lee and Ms Lyons were waiting. Ms King was then told that Mr Lee and Ms Lyons had decided to terminate her employment, effective immediately.

Later that day, Ms King sent Mr Lee and Ms Lyons an email, explaining her absence and urging them to reconsider their decision to terminate her employment. They did not.

Commissioner Johns of the Fair Work Commission determined that the employer’s reaction was “harsh and disproportionate to the gravity of the misconduct,” despite finding that the failure to notify her employer of the delay in her court matter, was, given her previous warnings in relation to unexplained absences and tardiness, a valid reason for the termination of her employment.

In reaching the conclusion that her termination was nonetheless harsh, unjust or unreasonable, the Commissioner took into account the fact that Ms King was not provided an opportunity to respond and the consequence for her, being the loss of her employment, was harsh and disproportionate to the gravity of the misconduct. Ms King was awarded $11,064.28 as compensation.

Each case must turn on its own set of facts: sometimes termination is justified, other times it is not. Either way, to reach that conclusion, due process must be followed to ensure fairness to all involved.


About Lisa Qiu:

Lisa joined Coleman Greig Lawyers in 2015 as a member of the employment law team. She has experience in the jurisdictions of the Fair Work Commission and the Fair Work Ombudsman, and acts for clients in a range of employment matters including:

  • Unfair dismissal
  • Adverse action
  • Discrimination
  • Underpayment

Lisa was admitted to practice as a solicitor after completing a combined degree of Bachelor of International and Global Studies and Bachelor of Laws at the University of Sydney. Prior to joining Coleman Greig Lawyers, she worked as a commercial litigator with a focus on insurance law – frequently appearing in the Local Court of NSW as well as representing clients in matters in the District Court and Supreme Court.