Manage the costs and inconvenience that can be caused by malingering employees.

Staff absenteeism: How to manage sickness and injury

Effectively managing employees who claim to be sick or injured remains a significant and costly issue for employers. But help is at hand.

Whilst the figures are a few years old now, a WorkSafe Australia study noted that in the 2008-09 financial year, the total combined economic cost for workers sickness and injury was estimated to be $60.6 Billion.

Whilst undoubtedly the vast majority of injured workers are innocent victims, some may be using the system to avoid work whilst continuing to derive income from it.

The good news is that although there are significant risks if not handled correctly, there are many things employers can do to manage these opportunists to limit the costs and inconvenience they can cause.

What are some of the risks?

1. Protection of injured workers provisions under workers compensation law

Workers compensation laws in a number of states impose restrictions on an employer’s right to dismiss an injured worker.They may also impose obligations to provide ongoing suitable duties for the employee.

2.General Protections and Unfair Dismissal Claims

Employers could face uncapped damages for prejudicing, or discriminating against, an injured worker in their employment under the Fair Work Act, with the onus on the employer of disproving that the reasons for the less favourable treatment included the employee’s disability or temporary absence from work due to illness or injury.

Even if this is avoided, terminating the injured worker could be found to be harsh, unjust or unreasonable with possible damages and / or reinstatement. 

3.Discrimination due to disability

Employees are also protected against discrimination due to a disability under the Disability Discrimination Act and other related legislation. Sickness or injury can validly be counted as a disability, and employers need to be wary of treating employees less favourably because of their health or a disability.

4. Increasing workers comp premiums  

Workers compensation is expensive, costly and a high risk for employers. Workers compensation premiums often increase on the estimated cost of any claim, as much as 9 times the first year claims cost. Getting expert advice on premium impacts is important before taking action against employees, such as terminating their employment, because premiums may escalate as a result.  

Managing risks

In our experience, there are many things employers can do to address malingering employees –

i) Be proactive – be consistent, with clear expectations and demand ongoing employee accountability. Illness and injury issues – and costs – tend to get worse as time goes on, so address the issue ASAP!

ii) Use legitimate criteria – such as objective medical advice, not personal opinions. You will probably need expert advice that deals with any issues or restrictions imposed by the employee’s own doctor.

iii) Obtain information – about the claimed condition.  

iv) Make reasonable adjustments – legally employers need to make ‘reasonable adjustments’ for ill or injured workers unless they will impose an unjustifiable hardship. Document that you have considered these, remembering courts may consider something to be entirely justifiable that you don’t.

Free Download: Termination Letter Template

Need to let an employee go? Use our letter of termination template to ensure you are using the correct format. 

termination letter template