Help! My employee is still going AWOL

G’day Aunty B,

Happy New Year (ohhh nearly February already). Wondering if you can help. You did an article previous on a staff member going AWOL on me (Help, my employee just went AWOL!).

The issue is after four weeks he returned to work but is a completely different person. He is logging an hour of time a day instead of seven. I keep on having to remind him to do his tasks and it’s putting a lot of pressure on the rest of the team (three others).

He is now on his second consecutive day off again after returning back to work two weeks ago and without any reason, except he is sick. He is still on probation as we have less than 15 staff and has been employed for around three months to date.

Can I legally request and ask why he is sick even if he has a doctor certificate just saying sick? As his performance is really low compared to before being sick the first time, can I performance manage him without the risk of getting done for unlawful dismissal? I don’t want him to go but at the same time I can’t keep him here like this.

Thanks Aunty

Regards,

Frustrated

Dear Frustrated,

I’m sorry to hear things haven’t gotten better.

The good news is I’ve had a chat to some lawyer friends and things certainly look in your favour. The Fair Work Act says an employee is not protected from unfair dismissal if they have been employed for less than six months in a large business or less than one year in a small business (fewer than 15 employees). So for you, this means you can terminate him after three months and generally be in the clear.

In terms of performance, it’s entirely reasonable for you to manage the performance of an employee under the law. To save your butt though, it is always best to warn him by saying “you will lose your job if you do not improve”. If you warn him, record valid reasons why his performance is poor and then he continues to perform below expectations, again, you can dismiss him and again you should be in the clear.

Regarding sick leave, if you suspect he is not fit for his duties, you can direct him to attend a doctor of your choosing for an assessment. If the doctor finds that he is unfit on a long-term basis, he can be dismissed. There is a general protection under The Fair Work Act though that you can’t dismiss for illnesses or injuries lasting less than three months, so that might be something you need to look further into.

No matter what course of action you take here, I highly recommend first contacting the Fair Work Ombudsman for advice. The Fair Work Commission will always look favourably on employers who reach out for advice and the Ombudsman may be able to give you some concrete advice from a more detailed conversation.

There are many employers out there who do not put as much effort and thought into their relationships with their employees. I really do commend you on making a continued effort here.

Good luck,

Your Aunty B