My employee is sick and we can’t afford his absence. Help!

Hi Aunty,

We have two full-time employees, one of whom has just been diagnosed with glandular fever. He may be off work for six to eight weeks, and then only return on a part-time basis (we won’t know until he gets back to work).

I don’t want to sound heartless, but we really can’t afford this. He is married, with two young children and a mortgage, and feels terrible about letting us down, but he will still get his wages every week he is off sick while my husband and I struggle to work his job as well as our own.

We can’t afford to pay another person to do his job, and he can’t afford to take time off with no pay. Oh yes, his accrued holidays and sick leave will only last two weeks, not six.

We pride ourselves on a “family first”company, where our employees know that their family life and health is a priority, but where do you draw the line? And what can we do in the meantime?

Feeling stressed,
S

Dear S,

We feel for you! And let me say that you are typical of SmartCompany employers – compassionate, caring and trying to do the right thing by your staff and your business even though it is incredibly hard. The bad news is there is no easy solution. But what I can do is outline for you what your choices are.

Let’s look at your legal requirements first. Dismissal is not an option. It is unlawful under the Fair Work Act to terminate someone because they are temporarily absent from work because of an illness.

Our legal expert Uncle P (Peter Vitale) explains that there is a minimum three month period, after all paid sick leave has been used, during which this law applies.

In addition, there are anti-discrimination laws at state and federal level, including new provisions in the Fair Work Act which prohibit discrimination against employees on the basis of disability, which includes an illness such as glandular fever.

In the case of the Fair Work Act, the provisions carry a reverse onus of proof – that is, the employer must prove that they were not discriminating or if they were discriminating it was not for any reason or part of the reason that the employee was suffering an illness or disability.

So, terminating this gent’s employment even as a temporary measure is absolutely off the table in the short-term, unless a mutually agreed position can be reached.

You must also decide if you intend to pay the employee for the full six weeks. If you do, it is vital that records of that are kept. Vitale says that it is not unknown for employees who have been extended these gestures to bite the hand of friendship some time later.

As for the longer term: you will be obliged to make some long-term accommodation for the employee unless some job share or other arrangement which enables his part-time hours to work can be shown to be an unreasonable or unjustifiable hardship for the business.

Inconvenience or a slight increase in costs will not qualify as unreasonable. If there is no long-term prospect that the employee can perform the basic requirements of the position (eg. Full-time hours) and any measures to accommodate that can be demonstrated to be unreasonable, then termination of employment may be an option.

So those are your legal obligations as an employer. You should also take into account the cost of him leaving. You have recruitment costs, replacement costs and risks associated with hiring an “unknown” person. And the loyalty that he will probably show to the business if you help him out!

I think your only solution is to grit your teeth and accept that the next six weeks are going to be hell. Fortunately there is Christmas at the end and you can have a rest then.

Uncle C (Colin Benjamin) also had a great suggestion: make contact with Centrelink to register for special benefits and encourage contact with appropriate emergency NGOs such as the Salvos or St Vinnies who may be able to help this family out.

And Uncle P asks if anyone has looked at whether there are any income protection insurances attached to the employee’s superannuation fund, which might be of assistance.

Lastly remember this: don’t run yourselves into the ground in the next six weeks. Could you bring in any work experience students? Can you outsource any part of the work? Remember you are no use to anyone if you burn out or keel over from exhaustion!

Good luck,
Your Aunty B

To read more Aunty B advice, click here.

Email your questions, problems and issues to auntyb@smartcompany.com.au right now!