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Leon, Solicitor
Category: Australia Law
Satisfied Customers: 44182
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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We currently have an employee who has been with us since

Customer Question

Good Morning,
We currently have an employee who has been with us since April this year who has quite a history of illness/absenteeism.
We suspect that she stays up late at night so with that tiredness gets rundown & sick as a consequence. Is there anything we can do or say as an employer to suggest to her that she needs to think about getting the appropriate rest to do her job effectively & warn her that if the absenteeism continues we will have to change her employment to casual, as it is interferring with work performed & other staff productivity as they need to do her work while she is away.
Thank you
Submitted: 10 months ago.
Category: Australia Law
Expert:  Leon replied 10 months ago.

Good Morning.

My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question. Please understand this is not legal advise but a guide to assist you.

How many staff do you have? They may be on probation and you can terminate them without reason.

Customer: replied 10 months ago.

Sorry, I thought I had already replied to you?

Hi Leon,

We have 15 employees (full time, part time & casual).

She is no longer on probation. Was made full-time permanent on 1/7/16.


Expert:  Leon replied 10 months ago.

Good Afternoon

If you terminate him before the 6 months is up he cannot make a claim for unfair dismissal

Here is some information.

If he cannot fulfil the criteria of the job then you also have an alternative to change him from full time to part time.

You have to be careful not to terminate him because of illness. So you do not have to give him a reason.

I hope this makes sense and is of assistance. If there is nothing further

thank you for using my services.

If I have missed anything, or you have any further questions please let me know

If there is anything else in the future please do not hesitate to ask.

Please do not forget to leave positive feedback.



Customer: replied 10 months ago.

Thanks Leon,

We weren't really looking at terminating employment at this point...We have invested time and money with this employee and can see some value in keeping them on.

Looking more as in what (if anything) we can suggest for them to do get healthy & rest so that they don't miss so much work.


Expert:  Leon replied 10 months ago.

Good Morning.

If he cannot do the job you have to have a meeting with him and advise that he cannot comply with the requirements and you are offering him an alternative.

You have to have a meeting with him and set out that he is not meeting the work description and make changes by agreement.

I hope this makes sense and is of assistance.

Customer: replied 9 months ago.


Our main question is ... can we say that the employee is unable to fulfill the job role because of lack of days worked ?

Cheers Anne

Expert:  Leon replied 9 months ago.

Good Morning

If they cannot be present the days required then yes you can.

Customer: replied 9 months ago.

Even tho they are Sick Days ?

Expert:  Leon replied 9 months ago.

You have given me the impression she is taking alot of time off?

They have 8 days sick in the first year.

They have to work for 122 months to have the 8 days. How many days off has she had since starting in April?

Customer: replied 9 months ago.

She has had 17.8 days sick

& 19.1 days leave

obviously a lot of this is unpaid

all since starting date of 6/4/16

Expert:  Leon replied 9 months ago.

Good Afternoon

She has no more sick leave to use.

You cannot terminate her because of her illness that is discrimination.

Even if you change her to part time there is no guarantee that she will be able to do the hours you want.

You have to advise her that you need someone that can work full time. If she cannot do the hours you will have to change her too part time and hire another partner to do the balance.

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