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Patrick H.
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Category: Australia Law
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Experience:  Dip Law LPAB - Sydney based lawyer
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My Employee has been working at my Company for 3 years. For

Resolved Question:

My Employee has been working at my Company for 3 years. For the past 5 months, we have employed him on a Full-time basis - During this time he has had quite a few days off either on sick day or even taking time off without contacting us at all. He has provided us at instances with evidence from a doctors certificate for some of the days he was away sick. In the meantime, I have had to employ another person to keep up with the work load, as when he has been away this means that no work can be done - all operations stops when my full-timer does not turn up for work. This has cost my business and also paying him for the time he is off /sick.

My question is - is it possible legally to suggest to him that being on Full-time is costing my business far too much from the point of view of production also including the loss of income to my business on the days he has been away from work. Can i put him back onto Casual Rate?

on an average he has had approx 1.5 days off per week for the past 5 months.
I have paid him for the whole time - I feel that he is taking advantage of this situation.
Also I am paying him above the award rate.

Thanks
Mary
Submitted: 1 year ago.
Category: Australia Law
Expert:  replied 1 year ago.
Hello and thank you for your question.

If he is continually just not turning up and without a medical certificate then this is grounds for summary dismissal provided you put him on notice that such is unacceptable and give him a reasonable opportunity to mend his ways (i.e. it would arguably be unfair to simply sack him for past transgressions if you hadn't previously warned him that his behaviour was unacceptable, but if he does it again after you warn him then dismissal would seem the appropriate outcome.

You cannot simply change him to casual without his permission, though you can ask him to agree to this in the way you have said, but if he doesn't agree, you can't force him.

Also be aware that ordinarily workers are only entitled to 10 days sick leave a year:

http://www.fairwork.gov.au/leave/sick-leave/pages/default.aspx

Whether you propose a change in the employment arrangement with your employee or not, I would strongly recommend you give your employee a formal warning about failing to attend work without notice and without proper excuse. Also warn him as to his sick leave entitlements and advise him how many days he has left if any, and that if he fails to turn up to work in breach of his obligations in future he will be summarily dismissed.

Whilst it is always possible the worker could allege that your dismissal is unfair, if you have good records of his employment absences, lack of notice or certificates and can show that you issued him a warning which he disregarded, it is unlikely that the Fair Work Commission would consider such a claim had any merit.

I trust the above assists your understanding.

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Thanks,

Patrick
Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 4507
Experience: Dip Law LPAB - Sydney based lawyer
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