By Jeff Salton

Company XYZ Prosthetics [fictitious] challenged an employee for breaching his employment contract and possibly the business’s code of conduct. As the first step of its internal investigation, XYZ Prosthetics set up a meeting with the employee for the next day to put forward its case and gather feedback from the worker. But the employee left work that evening and has been on personal leave ever since. The worker has been supplying medical certificates to cover his absence.

Now XYZ Prosthetics is wondering what to do. Is it reasonable to contact a worker who is on sick leave?

One major reason is that the worker left the business hurriedly so the company wishes to touch base with the worker to see if he is okay (there is real cause for concern regarding this person’s ongoing mental health).

The company’s head of HR wants to proceed with the breach of contract investigation and has suggested getting a medical expert to determine the worker’s fitness for duty and ability to engage in conversations that could potentially lead to dismissal. Can XYZ Prosthetics ask for further medical information to ascertain if reasonable measures can be implemented to prevent the employee being unfit for work?

Increased difficulty

Employment law expert Charles Power, author of the Employment Law Practical Handbook, says an employee can’t evade a disciplinary process because they are on personal leave, but it does make it more difficult to proceed.

“There is increased exposure to legal claims when an employee takes personal leave and you may wish to seek legal advice,” warns Charles.

But he suggests that if you find yourself in a similar situation to XYZ Prosthetics, that you write to the employee setting out your concerns and asking them to either attend a meeting to discuss the matter, or provide written responses to the alleged breach of employment contract and the code.

“In the letter,” says Charles, “you can acknowledge that the employee is on personal leave, but given the seriousness of the matter, you expect them to engage with you.

“You should let them know that failure to provide reasons for their behaviour or failure to engage with you may result in disciplinary action being taken against them, including that their ongoing employment is jeopardised,” he said.

Getting the process right

Often, knowing how to legally conduct an investigation, and then discipline the employee, can be the difference between success and failure if a worker challenges your decision at the Fair Work Commission.

Don’t risk making a costly mistake by getting the process wrong … either by failing to investigate allegations against an employee or by getting the disciplinary process wrong.