Dealing with an employee regularly taking time off citing dependents' leavePosted in : Seamus Says - Employment Law Discussion on 2 March 2018
Q: Is there anything we can do as an employer - we have an employee who seems to take two or three days off every month and cites dependents’ leave?
Seamus: Well, I suppose you need to be careful. My advice would be that you meet with the employee to discuss what the circumstances are. What is arising that’s requiring this dependence leave? If there are repetitive issues that are arising as in the babysitter has let us down or the person that looks after them, what’s the contingency plan? Sit down with the employee and work through that process. What are the alternatives here? Think what you’re looking to explain to the employee, yes, there is the element within the legislation and the rights for dependence. But it does still cause the business difficulties. It does still create problems in terms of the business and . . .
Scott: Getting some kind of coverage or notice.
Seamus: Exactly and doing all those steps. So, again, look to maybe come back to the process of planning ahead, find out what are the issues here. What can we do to try and resolve this? Are there steps the employer can take in order to assist the employee when this happens? Also, looking at things like if there is both mom and dad at the house and it’s a child that is sick, for instance—I’m using this as an example—you might have a situation where there is only mom at home or there is only dad at home, but there might be a situation where you find out that both are there and Dad doesn’t really need to take the day off because Mum’s there to look after the child.
Scott: Or the other way around.
Seamus: Exactly. So, where it’s repetitive like that, certainly, it warrants investigation. I don’t think that as an employer, you should shy away from that.
Scott: I think what’s behind this question is that the individual, having cited a statutory protection, is saying, “If we take any action against this person, they’re going to turn around and say you’re dismissing me because I have tried to enforce a statutory right.”
Scott: So, you have to be clear that if any action is taken, that it’s the absence that’s the issue, not the fact that you’ve asserted the right to take time off for dependents. It’s the fact that it’s continually causing you problems. But there is this element that if you get it wrong as an employer, it’s going to be automatically unfair because the person is enforcing or asserting a statutory right.
Seamus: Absolutely. You need to be careful about those conversations, that whatever you’re investigating and getting to the bottom of what the issue is that the employee is not left feeling, “This is the reason why they’re angry and therefore, I’m being punished because of the circumstances.” So, you do need to be careful about how you address that.
Certainly, I’ve had cases in the past where for instance, the employee comes in to say, “My mother or father has been struck down with an illness. The prospects are not going to be good here. I’m going to need a period of time off.” The next thing is that they’re dismissed and it’s leaving the person feeling, “That’s the reason. What’s the true reason again for the dismissal here?” It leaves the employer exposed. So, the employer is entitled to make those investigations, is entitled to have those discussions, but it’s just about the presentation and how that’s dealt with.
Scott: A lot of that comes down to the relationship between the employer and employee and if it’s a good one, the employee will be upfront with the employer. If it’s a bad one, there may be some other reason. They keep citing dependents, but it may actually be there’s some domestic abuse or something hidden that they don’t want to share.
Seamus: That’s what happened to getting down to what the issue is. Absolutely.
More on Working Time & Leave
- Reinventing the Workplace: Considerations for Blended Working
- Leave Entitlements And The Rights To Time Off
- Perkins v The Best Connection Group Ltd 
- In the case of a student who carries out hourly-paid work during school vacations would their holidays accrue during the unpaid absences from work?
- Is an employee with two contracts (full-time and casual) with the same employer entitled to holidays under both contracts?
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