By Jeff Salton

Ask yourself … what would you do in the following scenario?

Company ABC (fictitious) has just hired a worker who clearly beat other candidates with her impressive resume and skill set. But in the first month of employment, she has been absent for more days than she has been in the office.

She has so far claimed to be sick, then her mother, who she lives with, was ill, now she is ill again.

As the saying goes: ‘sickness knows no day’ … but what has made this situation more challenging is that despite a number of requests, she has failed to produce any medical certificates for her absences.

And, at present, she is on personal sick leave.

No hint of past dramas

When her references were checked, absenteeism was not highlighted as a problem by previous employers.

Because she is still in her probationary period, after just one month, the company is concerned that if it terminates her employment it may run into complications since she claims that her absences are due to genuine sickness.

What are Company ABC’s options? It wishes to terminate her employment, but can it … fairly?

What’s your answer? What are the risks, if any?

Charles Power, Editor-in-Chief of the Employment Law Handbook, says Section 107 of the Fair Work Act 2009 (Cth) (FW Act) notes that an employee must provide a medical certificate if the employer requests it.

“While you may not have an existing policy requiring a medical certificate, the FW Act allows you to request the relevant documents. If the employee refuses to provide the certificates, you may then begin the disciplinary process,” Charles says.

“Assuming the employee has been working for fewer than six months, she does not have the unfair dismissal option available to her. However, she may lodge a general protections claim at any time during her employment,” Charles adds.

“There is no way to stop her lodging such a claim, but the way to avoid a successful claim is to clearly document the performance process as being due to her continued failure to produce medical certificates.”

Following the process

As with many successful defences of unfair dismissal claims, following the correct process has proved to be a winner for many employers. Not following a fair process of dismissal has, in some cases, ended in payouts to workers, even when the courts sided with the employer’s reasons for dismissing the worker.

Don’t make the same mistake. Ensure your dismissal processes are fair in the eyes of the law.